This agreement relates to Audiens’ online customer data platform. 

Any use of the Audiens Platform (as defined below) is subject to the terms of this licence agreement (“Agreement”). Please read the full Agreement carefully. 

By using the Audiens Platform or clicking agree to accept these terms the Data Owner confirms that it accepts and agrees to be legally bound by all terms and conditions of this Agreement.  If these terms are not accepted, the Data Owner must not use the Audiens Platform, or authorise anyone else to use the Audiens Platform.  

IMPORTANT NOTICES 

(i) Where the Data Owner and Audiens sign a bespoke agreement governing the Data Owner’s access to the Audiens Platform, that agreement will take precedence over this Agreement and any subsequent “click to agree” versions of this Agreement. 

(ii) Subject to (i), this Agreement shall prevail over the Data Owner’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, any relevant purchase order or confirmation of order.  

AGREED TERMS 

1) Definitions and Interpretation 

“Affiliate” means an affiliated body, any partnership or other unincorporated association in which either Party or any of its affiliated bodies has a controlling interest.  For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity. 

“Applicable Laws” means all applicable national, provincial, state, municipal and local laws, statutes, by-laws, rules, orders (including court orders), decrees, ordinances, regulations and codes in effect from time to time and made or issued by governmental, legislative, administrative or regulatory authorities or agencies, including Privacy Laws, and which are legally binding on the applicable Party. 

“Audiens” means NewDeep Ltd trading as ‘Audiens’, incorporated and registered in England and Wales with company number 11130018 whose registered office is at 2nd Floor Platinum Building, St John’s Innovation Park, Cambridge, Cambridgeshire, United Kingdom CB4 0DS. 

“Audiens Platform” means the customer data platform software operated by Audiens or its Affiliates from time to time. 

“Audiens Platform Features” means those features provided by the Audiens Platform to Data Owner, as more particularly described in clause 2) and Schedule 1 below.  

“Data Owner” means the entity or organisation which purchases access to the Audiens Platform for use by its employees under the direct control of the entity (and such entity shall be responsible for all use by its employees of the Audiens Platform under this Agreement). 

“Order Form” means an ordering document, invoice, or online order specifying details, including the price, of the licence to be provided under this Agreement. 

“Party” and “Parties” means Audiens and/or Data Owner as applicable. 

“Privacy Law” means the Data Protection Act 2018, Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”) in force under English law, and such other applicable or equivalent legislation in England from time to time, together with such equivalent legislation in any relevant territory from time to time together with all Applicable Laws, regulations, regulatory requirements and/or codes of practice relevant to the collection, use and disclosure of Personal Data (as defined in GDPR) pursuant to this Agreement. 

“User” means a device, as identified by a cookie ID or device ID, or both. 

2) Audiens Platform and Audiens Platform Features 

a) Use of Audiens Platform.  Audiens grants to Data Owner the non-exclusive license to use the Audiens Platform for the term of and in accordance with the provisions of this Agreement. 

b) Provision of Audiens Platform Features. During the term of this Agreement, and in consideration of the payment by Data Owner of the fees payable in accordance with clause 5), Audiens agrees to provide to Data Owner the Audiens Platform Features specified in Schedule 1. 

3) Data Owner Obligations 

a) License to Data Owner Data. Data Owner grants to Audiens a non-exclusive license, without  territorial limits from the start date specified in the Order Form and for the term of the Agreement  to collect, use and process all data provided by Data Owner to Audiens through the Audiens  Platform (whether via API, website tags, in-app code snippets, analytics post backs from  various sources or other methods) for the purposes set out in and as contemplated by this  Agreement.  

b) Representations and Warranties. Data Owner represents, warrants and undertakes:

i) that it has the right and authority, and where necessary, has secured all necessary  permissions from the actual data owner, or customer, to supply all data onboarded into  the Audiens Platform; 

ii) it has the right to enter into the license granted under 3)a) above this Agreement and to  grant to Audiens the license or sub-license to use and process the data provided by it to  Audiens as contemplated by this Agreement; 

iii) to perform all the necessary actions to authorize, allow and facilitate the collection of data  by Audiens through the provision of the Audiens Platform Features, and to maintain any  and all code inserted by Audiens on any relevant websites or apps, or via post backs  from 3rd party solutions or products in compliance with any information requirements set  out in this Agreement or notified to Data Owner from time to time; 

iv) to provide Audiens with all assistance, technical specifications, procedures and any  updates or modifications, for the term of the Agreement, to guarantee access to the Data  Owner data and related updates; 

v) not to: 

(1) use or allow third parties to use the Audiens code for any purpose other than as  authorized under this Agreement; or 

(2) modify, alter or reverse engineer any Audiens code; 

vi) to transfer only anonymous data to the Audiens Platform and, more generally, to not allow  in any way the identification of any data subject (as defined by applicable Privacy Laws). If  the data transmitted by Data Owner is no longer anonymous, Data Owner remains for  the purposes of this Agreement the sole owner and controller of the same according to  the definition given by applicable Privacy Laws; 

vii) that the data obtained and transferred to, and processed by, Audiens from time to time is  provided in full compliance with all Applicable Laws;  

viii) that Data Owner has implemented and enforced, on an ongoing basis, all organisational,  technical and regulatory measures required for the collection and transfer of the data  transferred to Audiens and the processing of that data by Audiens in the provision of the  Audiens Platform Features; 

ix) that Audiens is duly authorized to export Data Owner’s data into the main advertising  platforms (including but not limited to DoubleClick, Adform, AppNexus, BrightRoll);  x) the distribution and processing of Data Owner’s data by the Audiens Platform does not infringe any privacy, copyright, intellectual or industrial property, trademark or any other  third-party rights; 

xi) to use the Audiens Platform in full compliance with Applicable Law; 

xii) to only transmit data onto and process data on the Audiens Platform in compliance with  Audiens requirements from time to time and Applicable Laws; 

xiii) not to assign usernames and passwords to (y) third parties or to individuals not employed  and under the direct control of Data Owner, and therefore not to allow third parties to use  the Audiens Platform, or (z) persons not authorized by Audiens;

xiv) to comply with all terms and conditions and requirements of Audiens from time to time  relating to the use of the Audiens Platform and receipt of the Audiens Platform Features,  whether incorporated in this Agreement, published at audiens.com or otherwise notified  to Data Owner from time to time; 

xv) to allow and not to hinder the absolute right of Audiens, its Affiliates and their employees  and authorised representatives, to periodically verify the correct and proper use of the  Audiens Platform (in the sole opinion of Audiens). It is understood that if Audiens  suspects or discovers evidence of incorrect or improper use of the Audiens Platform by  Data Owner, or if such usage exceeds any limitations reasonably imposed by  Audiens, Audiens may, in its sole discretion, (a) immediately suspend Data Owner’s use  of the Audiens Platform and / or use of the Audiens Platform Features for any period that  it deems appropriate, and / or (b) suspend or terminate this Agreement, and / or (c)  remove data and / or disable access to the Audiens Platform, (d) take such other action  as Audiens deems appropriate, all without prior notice to Data Owner; 

xvi) to use account access credentials in accordance with Audiens Platform requirements  from time to time; 

xvii) where required, to update its cookie policy through the insertion of the following  link: https://www.audiens.com/privacy; 

xviii) not to use the Audiens Platform or the Audiens Platform Features for committing a crime,  money laundering or financing terrorism, or in breach of any Applicable Law or enable  any third party to do the same; 

xix) that all information provided to Data Owner, whether prior to or during the term of this  Agreement is true, correct and updated; and 

xx) that the Audiens Platform and the Audiens Platform Features are being used within the  country listed against the Data Owner’s address set out in the Order Form. Data Owner may not use the Audiens Platform or the Audiens Platform Features in any other country without the prior written consent of Audiens. 

4) Audiens Rights 

a) Audiens has the right, in its sole discretion, to: 

(i) suspend the use of the Audiens Platform by Data Owner at its sole discretion if it considers that the Audiens Platform is being used in violation of this Agreement or any Applicable Laws or industry regulations or guidelines; and/or 

(ii) refuse the transmission of Data Owner data and / or delete Data Owner data from the Audiens Platform if it considers such data is being transmitted or otherwise processed in violation of this Agreement or any Applicable Laws or industry regulations or guidelines. 

b) The Parties acknowledge and agree that Audiens processes the data supplied to the Audiens Platform using Audiens proprietary technology in such a manner as to produce derivative data not directly based on the raw data supplied by Data Owner. Audiens and / or its Affiliates may, and are entitled to use such derivative data for its sole benefit. 

5. Pricing and Charges 

a) Fees.  Subject to the expiry of any agreed free trial period(s), the Data Owner shall pay the recurring fee payable to Audiens by the Data Owner as calculated in accordance with the fees set out in the Order Form.  

b) Invoices. Unless otherwise stated in an Order Form, Audiens shall be entitled to issue an invoice electronically to the Data Owner at or after the end of each calendar month for the fees payable in respect of that calendar month.  

c) Taxes. All amounts payable under this Agreement are exclusive of value added tax or any other applicable sales or similar taxes arising out of or in connection with this Agreement, which shall be charged in addition and paid by the Data Owner. 

d) Payment of invoice. Unless otherwise stated in an Order Form, the Data Owner shall pay to Audiens the sums set out in each invoice within 30 (thirty) days of the date of the relevant invoice. 

e) Failure to Pay.  Audiens reserves the right to suspend the provision of access to the Audiens Platform and / or the provision of the Audiens Platform Features if, where charges apply, Audiens has not received full payment within 14 (fourteen) days of the due date for any payments due to it. 

f) Fee increase. Subject to any price increase mechanism included in the Order Form, Audiens shall be entitled to increase the fees payable from time to time on written notice to the Data Owner, provided that any such increases shall only be applicable to the calculation of the fees for the subsequent month’s invoice. If the Data Owner is unwilling to pay the increased fees, it shall be entitled to terminate this Agreement on written notice to Audiens within 7 (seven) days of receipt of Audiens’ notice.  

6) License 

Data Owner grants Audiens a non-exclusive license, without territorial limitations to: 

a) copy, track, record, distribute, transmit, catalogue, profile, work, exhibit, create derivatives,  and transfer the data supplied to Audiens by Data Owner to third parties.  This licence shall survive termination of this Agreement, in perpetuity, for whatever reason; and / or   

b) collect, through the introduction by Data Owner on websites, apps, or via post backs from 3rd party solutions or products, of a pixel tag or other code agreed by the Parties, the data about the User’s navigation of such websites.

7) Privacy 

a) Both Parties will comply with all applicable requirements of Privacy Laws. This clause 7)a) is in addition to, and does not relieve, remove or replace, a Party’s obligations under applicable Privacy Laws. 

b) The Parties acknowledge that for the purposes of Privacy Laws, Data Owner is the data controller and Audiens is the data processor (where data controller and data processor have the meanings as defined in Privacy Laws). 

c) The Audiens Data Processing Agreement sets out the additional terms, requirements and conditions on how Audiens will process Personal Data when providing services under this Agreement.

8) Confidentiality 

Each Party acknowledges that it will have access to material, documents, data, systems and other information concerning the operation, business, financial affairs, products, customers, forecasts, plans, calculations, agreements etc. of the other Party that may not be accessible or known to the general public, including, but not limited to the terms of the Agreement or disputes between the Parties related to the Agreement, court or arbitration proceedings and all thereto related materials and information (“Confidential Information”). The Parties agree that Confidential Information shall remain the sole and exclusive property of the disclosing Party (“Disclosing Party”), and the receiving Party (“Receiving Party”) agrees to maintain (and to ensure that its employees and managers maintain) the Confidential Information in strict confidence and to use the Confidential Information solely for the purposes set forth in the Agreement and for fulfilling the Agreement. The Parties further acknowledge and agree that Confidential Information shall be deemed to include all intellectual property rights of the Parties. The Receiving Party may disclose the terms of this Agreement to its auditors, legal and business advisors and to potential investors, so long as such third parties have entered into a confidentiality agreement with the Receiving Party, the obligations of which are at least as stringent as those contained in this Agreement, or are otherwise subject to such obligations of confidentiality. The Receiving Party may disclose Confidential Information to their Affiliates (provided that such Affiliates use or disclose the Confidential Information solely for the purposes set forth in the Agreement and for fulfilling the Agreement, and provided, further, that the Receiving Party shall be fully responsible for any unauthorized use or disclosure of Confidential Information by its Affiliates, as if the Receiving Party had itself committed such unauthorized use or disclosure) and if so required by law or competent authority, giving the Disclosing Party prior notice thereof.  

9) Warranties 

a) Capacity and Authority. Each Party represents and warrants to the other Party that: (1) it has the full corporate right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (2) its entry into this Agreement and performance hereunder does not and will not violate any agreement to which it is a party or by which it is bound, any third party rights, or any applicable laws or regulations, as they may be amended from time to time; and (3) this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms. 

b) Audiens Platform Features.  Audiens shall use reasonable commercial efforts to ensure that the Audiens Platform Features shall be functional and available for use at all times during the term of this Agreement, other than a reasonable amount of scheduled downtime for maintenance. 

c) Disclaimer. Data Owner acknowledges that Audiens is not in a position to guarantee that the operation of the Audiens Platform or provision of is free from errors or failures. Except as otherwise expressly provided in this Agreement, Audiens disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, correctness, accuracy and reliability. 

10) Indemnity 

Data Owner shall defend, indemnify and hold harmless Audiens, its Affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, liabilities, damages, taxes, fines, penalties, costs, expenses (including reasonable attorney’s fees) and other losses arising out of or accruing, directly or indirectly, from (1) Data Owner’s use of, or (in)actions in the course of using, the Audiens Platform and / or the Audiens Platform Features; (2) any and all websites and / or applications containing Audiens code or transmitting data to Audiens (including their advertisements); (3) the supply by Data Owner of any and all data; and (4) any breach by Data Owner of the representations, warranties, agreements or other obligations under the Agreement, industry standards, Privacy Laws or Applicable Laws. 

11) Limitation of Liability 

a) Indirect and Consequential Losses. Except as provided in Section 10 above, neither Party will be liable under this Agreement for any special, indirect, incidental, consequential, punitive, or exemplary damages arising from or related to the Agreement or breach thereof, even if the Party has been advised of the possibility of such damages. 

b) Limit on Liability. Data Owner acknowledges and agrees that Audiens does not control, nor is it technically able to control, the data transmitted by Data Owner or uploaded to the Audiens Platform. Therefore, Audiens, its Affiliates and their respective directors, officers, employees and agents may in no case be held liable towards third parties or Data Owner for any such data.  The Audiens liability in contract, tort, negligence, product liability or otherwise however arising out of or in connection with the Agreement for all events, or series of connected events, occurring in any year of the term of the Agreement shall not exceed in the aggregate 100% (one hundred per cent) of Audiens earnings under the Agreement during six (6) months prior to the event giving rise to liability. 

12) Term and Termination 

a) Term and Termination. Where the Order Form sets out an end date, the Agreement remains effective until such date, unless otherwise terminated. Where the Order Form does not set out an end date, the Agreement remains effective until terminated. Unless otherwise specified in the Order Form, either Party may at any time, without cause, terminate either the entire Agreement or any part of the Agreement as it relates to a model licensed to Data Owner, as more particularly set out in Schedule 1 and the Order Form, by giving one (1) month’s prior notice thereof to the other Party. Either Party may terminate the Agreement with immediate effect, if: (1) the other Party is in material breach of the Agreement and either the relevant breach is incapable of cure or the breaching Party does not cure such breach within  fourteen (14) days following receipt of written notice from the non-breaching Party, or (2) if the other Party ceases business operations, becomes insolvent, or is subject to any bankruptcy or other similar legal process or proceeding. 

b) Consequences of Termination. When the Agreement is terminated, all of the legal rights, obligations and liabilities that the Data Owner and Audiens have benefited from, been subject to (or which have accrued over time whilst the Agreement has been in force) or which are expressed or intended to continue indefinitely (e.g. clauses regarding indemnity, limitation of liability, warranties, confidentiality, governing law, disputes etc.), shall be unaffected by the termination.  The license(s) granted by Audiens to Data Owner to use the Audiens Platform shall terminate immediately upon termination of this Agreement or, in respect of either model licensed to Data Owner, upon the termination of the Agreement as it applies to that model. 

c) Removal of Code. Data Owner shall promptly, upon transmission or receipt of notice of termination of this Agreement (as the case may be), remove from all websites and applications the code licensed to Data Owner by Audiens. It is understood between the Parties that the license granted by Audiens to the code will survive for a period of 90 (ninety) days after the date of termination of the Agreement regardless of the grounds for termination.  

13) General 

a) Governing Law. The Agreement shall be governed by the laws of England, without regard to the conflict of laws principles. 

b) Dispute Resolution. In the event of a dispute arising out of or in connection with this Agreement, the Parties will use their best efforts to settle the dispute amicably by mutual negotiations, escalating the matter as appropriate within their respective organizations.  If the dispute cannot be so resolved, it shall be referred to the English courts for resolution. Where this is not appropriate it shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.  The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England.The language to be used in the arbitral proceedings shall be English.  

c) Injunctive Relief. Notwithstanding any other provision of this Agreement, the Parties acknowledge and agree that any breach of this Agreement by either Party may cause irreparable damage for which recovery of monetary damages would be inadequate, and that the non-breaching Party shall therefore be entitled to seek injunctive or other equitable relief in a court of competent jurisdiction, to protect such Party’s rights under this Agreement in addition to any and all remedies available at law. 

d) Attorneys’ Fees. In the event that any action or proceeding is brought in connection with this Agreement, then, following the final judgment for such action or proceeding, the prevailing Party shall be entitled to recover its costs and reasonable attorneys’ fees as directed in the final judgment. 

e) Severability. If any term, condition or provision of the Agreement is invalid, unenforceable or illegal in whole or in part, that provision shall be replaced by a permissible provision as close in content and purpose as possible to the original provision. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected. All headings (including clause headings) are for reference purposes only and shall not be used for interpretation of the Agreement. Failure or delay by a Party to exercise or enforce any provision or right under the Agreement shall not be deemed a waiver of future enforcement of that or any other provision or right. 

f) Assignment. This Agreement and the rights and duties hereunder shall not be assignable by the Data Owner except upon Audiens’ written consent, except that the Data Owner may at any time assign or transfer this Agreement and/or any of its rights or obligations hereunder, in whole or in part, to any Affiliate or to any successor to the Data Owner following a re-organization or merger of the Data Owner with another organization or a sale of substantially all of the assets of such Party upon notice but without consent.   

g) Subcontracting.  The Data Owner authorizes Audiens to subcontract elements of the Audiens Platform and the delivery of Audiens Platform Features to third parties, such as providers of technical support services provided that such subcontractors are managed in accordance with the requirements of this Agreement and Audiens will be liable for the actions or omissions of such subcontractors.  

h) Nature of Legal Relationship. The Parties enter into the Agreement as independent contractors, and the Agreement shall not create a partnership, agency, joint venture or employment relationship. Neither Party will be deemed to be a representative of the other nor will either Party have any right to create any obligation on behalf of the other Party, unless otherwise stipulated herein. The Agreement does not protect or benefit any third party and no term of the Agreement shall be enforceable by any person who is not a Party to the Agreement. 

i) Notices. Any notice to be given under this Agreement shall be in writing (which shall include by email). Notices to Audiens shall be sent to Audiens’ registered office address or by email marked “ATTN: CEO” to legal@audiens.com. Notices to the Data Owner shall be sent either by email or by post to any address that may have been provided by the Data Owner to Audiens. Delivery shall be effective upon receipt (or when delivery is refused).  Notices may be delivered either by hand, by pre-paid first-class post (if sent within the same country) or by internationally recognized courier (e.g. FedEx, DHL). A notice may be sent by email provided a copy is also sent by mail or courier. Each Party may change its address for receipt of notices by giving written notice of the new address to the other Party.  

j) Amendments. Audiens reserves the right to revise the terms of this Agreement by updating this Agreement on the Audiens Platform and/or Audiens’ website. The Data Owner’s continued use of the Audiens Platform shall be deemed to constitute acceptance of any revised terms. 

k) Entire Agreement. The Agreement constitutes the entire agreement between the Parties and supersedes any prior agreement, whether written or oral, and all other communications and negotiations between the Parties relating to the subject matter of the Agreement. 

l) Force Majeure. Either Party’s performance of any part of the Agreement shall be excused to the extent that it is unavoidably delayed or prevented by flood, fire, earthquake, strike or riot, failure of power or telecommunications networks, terrorist attacks or any other circumstances beyond the reasonable control of that Party and not caused by that Party (but excluding anything that would not have affected performance hereunder (or would have affected performance to a lesser extent) if the applicable Party had implemented or used best practices with respect to disaster recovery, security, compliance and otherwise with respect to the conduct of its business) (collectively referred to as “Force Majeure”). If any Force Majeure condition(s) occur(s), the nonperforming Party shall notify the other Party of the nature of any such condition and the extent of the delay immediately, and shall use all reasonable efforts to resume performance as soon as possible. 

m) Publicity.  With the other Party’s prior written consent, either Party may publish or otherwise disseminate a news release or other marketing material that references the other Party.  If Audiens, upon advice from its financial or nominated advisors, determines that it must notify the London Stock Exchange of the existence of this Agreement, Audiens will give advance notice to Data Owner and give Data Owner reasonable opportunity to comment on the wording of such notification.  Further, with prior written consent from Audiens, Data Owner may refer to Audiens as the Data Owner’s service provider in marketing and promotional materials and may include the Audiens name, logo, and other information about Audiens (e.g., company profile information) in such materials. Nothing herein limits either Party’s right to disclose this Agreement and related information to third parties as reasonably necessary in connection with the operation of its business or the Audiens Platform Features. 

SCHEDULE 1 

THE AUDIENS PLATFORM AND THE AUDIENS PLATFORM FEATURES 

Audiens Platform licenses provide the following standard features: 

– Multi-source data onboarding: capture data in multiple formats from various sources, including websites, applications and CRM.  

– Identity resolution: consolidate customer profiles across multiple sources and interactions  

– Audience builder: model raw data onboarded into audience segments 

– Multi-channel data publishing: stream data to leading marketing platforms, e.g. leading DSPs 

– Audience insights: review metrics including: 

• User numbers and interactions
• Data sources and events
• Audience segments
• Segment usage and revenues
• Marketing channel use and value 

An Audiens Platform license additionally enables data segments to be published to the Data Owners own marketing tools for private use. 

For this Agreement, Data Owner will license the Audiens Platform the model set out in the Order Form. 

Notwithstanding any additional trial period to which the Data Owner may be entitled to under separate terms and conditions, Audiens may provide trial period without charge for any of the above services.