Date Last Modified: July 09, 2025
These Audyence Publisher Terms and Conditions (referred to herein as the “Agreement”) are a legally binding agreement between you (a single natural or legal person, hereinafter referred to by the term “Publisher” or “You” or words of similar import) and Audyence, Inc. a Delaware corporation located at 6304 Berkeley Cove, Austin, TX 78745 (hereinafter “Audyence”, or “Us”, “We”, “Our” or words of similar import) with regard to Your use of the Services as further described below. IMPORTANT - PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY REQUESTING, ACCESSING OR USING THE SERVICES IN ANY FORM OR MEDIA, PUBLISHER CONFIRMS THAT PUBLISHER HAS READ AND UNDERSTANDS THIS AGREEMENT AND THAT PUBLISHER AGREES TO BE BOUND BY THIS AGREEMENT. IF PUBLISHER DOES NOT AGREE OR DOES NOT WISH TO BECOME A PARTY TO THESE TERMS, PUBLISHER SHOULD NOT REQUEST, ACCESS OR USE THE SERVICES. PUBLISHER CONFIRMS THAT IT UNDERSTANDS THESE TERMS AND AGREES TO BE BOUND BY THESE TERMS BY EXECUTING AN ORDER OR ONLINE ORDERING FORM REFERENCING THESE TERMS. ANY ORDER OR ONLINE ORDERING FORM OR WEBPAGE PROVIDED BY AUDYENCE SHALL BE REFERRED TO HEREIN AS AN “ORDER”. THE “EFFECTIVE DATE” FOR THIS AGREEMENT IS THE EARLIER OF THE FIRST DATE OF ANY APPLICABLE ORDER OR THE FIRST DAY PUBLISHER REQUESTS, USES OR ACCESSES THE SERVICES. EACH ORDER MAY NOT BE CANCELLED ONCE THESE TERMS HAS BEEN ACCEPTED, AND NO REFUNDS WILL BE GRANTED.
We update this Agreement from time to time. If you have an active subscription to the Services (defined below), Audyence will let You know when we update this Agreement via in-application notification or by email (if You subscribe to receive email updates). If you do not have an active subscription, an updated set of terms will be indicated by the "Date Last Modified" date above.
1.1 “Advertiser” means an agency or brand that accesses or uses the Platform for the purposes of requesting Lead Generation Campaigns.
1.2 “Advertiser Data” means any Data made available on or through the Services that is provided by an Advertiser. Advertiser Data includes all Lead Generation Campaigns submitted by the Advertiser, including all Data and criteria associated therewith that is provided by the Advertiser.
1.3 “Advertiser Materials” means Advertiser Data and Qualified Leads.
1.4 “Affiliates” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
1.5 “Audyence Data” means any Data made available on or through the Services (including Data that may be licensed by Audyence from a third party for the purposes of providing the Services) that is not Advertiser Materials or Publisher Data.
1.6 “Campaign Order” means the selection of one or multiple Publisher(s) in response to a Lead Generation Campaign request, and the budget allocation steps within the Platform that serves as the transmission method to execute a Lead Generation Campaign where the applicable Publisher(s) cost per lead and lead quantity are approved. A Lead Generation Campaign request does not become a Campaign Order, and Publisher’s response to any such request for proposal will not be binding until the applicable Advertiser selects Publisher to execute the Lead Generation Campaign, and such Advertiser confirms the budget allocation within the Platform. A Campaign Order is not an Order Form.
1.7 “CIR Reports” means insight and analytics reports made available by Audyence to its customers who purchase access to CIR Reports as part of their Services subscription. CIR Reports use aggregated and anonymized data from multiple Audyence advertisers and publishers to illustrate trends relating to media spend and performance. This data includes data related to bidding, allocation, and delivery processes executed using the Platform. CIR Reports do not include any Personal Information, and do not identify any publisher or Advertiser.
1.8 “Data” means any data, document, graphic, text, media, or other content or information.
1.9 “Data Protection Laws” means all laws related to privacy, data protection, or collection of, access to, or processing of Personal Information that are applicable to a party in connection with its activities relating to this Agreement as the same may be amended from time-to-time, including without limitation, the EU General Data Protection Regulation, UK Data Protection Act of 2018, the Federal Act on Data Protection of Switzerland, the California Consumer Privacy Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, and the Utah Consumer Privacy Act.
1.10 “Documentation” means any manual and other documentation regarding the Platform made generally available by Audyence to its customers, as may be updated from time to time.
1.11 “Intellectual Property Rights” means all registered or unregistered intellectual property rights throughout the world, including rights in patents, copyrights, trademarks, trade secrets, designs, databases, domain names, and moral rights.
1.12 “Laws” means any local, state, or national law, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule, or other binding restriction of or by any governmental authority applicable to a respective party.
1.13 “Lead Generation Campaign” means a lead generation campaign launched by an Advertiser through the Platform pursuant to which the Advertiser will leverage one or multiple publisher(s) to target relevant audiences and obtain Qualified Leads, and all information provided by the Advertiser associated with such campaign request.
1.14 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents, or programs.
1.15 “Order Form” means the document signed by Publisher or a checkout page within the Platform that further describes the Services that Publisher is subscribing to. A Campaign Order is not an Order Form.
1.16 “Personal Information” as used in this Agreement shall include information defined as "Personal Data" or "Personal Information" or similar terms in any applicable Data Protection Laws, and the term “processing” shall have the definition given to it any applicable Data Protection Laws.
1.17 “Platform” means Audyence’s online, web-based platform that provides self-serve lead generation campaign planning, purchasing, management and reporting capabilities that is provided on a subscription basis as part of the Services.
1.18 "Process" (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on Data or on sets of Data, whether or not by automated means, including without limitation collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.19 “Publisher Data” means Data submitted by or on behalf of Publisher to the Services, including, without limitation, any marketing materials provided by Publisher, and any proposal data provided by publisher, but excluding any Qualified Leads submitted by the Publisher.
1.20 “Qualified Leads” means the qualified leads submitted by or on behalf of Publisher to the Platform in response to a Campaign Order an Advertiser. In order to be a Qualified Lead, the lead must: (i) complete all required fields with truthful and accurate information, (ii) opt-in to receive an asset from the applicable Advertiser, and (iii) meet the Advertiser’s filter criteria set forth in the applicable Campaign Order and Lead Generation Campaign request.
1.21 “Services” means the Platform and its associated Documentation, Audyence Data, subscriptions, CIR Reports and other features, functionality, and services(s) identified in the applicable Order Form and provided to Publisher under this Agreement.
1.22 “Term” means the term of the subscription to the Services as specified in the applicable Order Form.
1.23 “Usage Data” means anonymized or aggregated data, statistics, usage analytics and analysis derived from the Services and Publisher’s use thereof.
1.24 “User” means Publisher’s employees, agents, and independent contractors authorized by Publisher to access and use the Services pursuant to the terms and conditions of this Agreement; provided, however, that any agent or contractor’s access to and use of the Services will be limited solely to their provision of services to Publisher and not for any other purpose or use.
1.25 “User Data” means any Personal Information of your Users that Audyence may collect and use to provide the Services to Publisher.
2.1 Services. Subject to this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Audyence hereby grants to Publisher, solely during the term of the applicable Order Form, a non-exclusive, non-transferable (except as set forth in Section 11.2 (Assignment)) license to access and use the Services solely for Publisher’s internal business purposes. This license is restricted to use by Publisher and Publisher’s Users and (except for Affiliates subject to Section 2.2 below) does not include the right to use the Services on behalf of any third party. Publisher is responsible for procuring and maintaining the network connections that connect Publisher to the Services. Publisher acknowledges and agrees that Audyence shall only provide Publisher with the specific Services identified on the Order Form, and not any other products or services that Audyence may offer.
2.2 Affiliates. 2.2.1. Subject to the terms of the Order Form and this Agreement, the Publisher may make the Services available for use by its Affiliates provided that (a) all restrictions and obligations hereunder are complied with by each Affiliate, and (b) such Affiliates are bound by obligations as protective of Audyence as this Agreement for the benefit of Audyence. Publisher shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates, except where the Affiliate has signed its own Order Form with Audyence for the Services pursuant to Section 2.2. 2.2.2. In addition to Section 2.2.1, Publisher’s Affiliates may acquire Services subject to the terms and conditions of this Agreement by executing Order Forms hereunder directly with Audyence. Each Order Form executed by an Affiliate hereunder shall incorporate the terms of this Agreement by reference and be deemed to be a two party agreement between Audyence and such Affiliate. Each Affiliate executing an Order Form shall be solely responsible for its obligations pursuant to such Order Form as well as for the obligations to be performed pursuant to this Agreement and the liabilities arising out of this Agreement as if it was the named party instead of Publisher. Publisher shall have no obligations or liabilities as to such Order Form signed by its Affiliate and Audyence shall look solely to the Affiliate executing such Order Form.
2.3 Lead Generation Campaigns; Qualified Leads. 2.3.1. The Platform permits Advertisers to plan, purchase and manage Lead Generation Campaigns through the Platform, pursuant to which Publisher may digitally interact with such Advertiser and request to provide the Qualified Leads for such Lead Generation Campaign. During the Term, Publisher may from time to time receive and respond to a request for proposal for a Lead Generation Campaign from Advertisers within the Platform. Publisher acknowledges and agrees that Advertisers select Publishers at their own discretion based on criteria and requirements selected by the Advertiser. Audyence does not guarantee that any specific number of Lead Generation Campaigns will be requested or otherwise made available to Publisher, or that Publisher will win any Lead Generation Campaigns. Audyence is not responsible for the requirements of any Lead Generation Campaign. 2.3.2. If Publisher agrees to participate in any Lead Generation Campaign and such Lead Generation Campaign request becomes a Campaign Order, Publisher may not terminate such Campaign Order, and Publisher is obligated to provide all Qualified Leads committed under the Campaign Order in the manner described in the Campaign Order. 2.3.3. The Advertiser may cancel or terminate all or part of a Campaign Order at any time without penalty. Notice of any such termination shall be provided to Publisher via the Platform. Upon receipt of such notice, Publisher shall immediately cease all activities associated with the Campaign Order, including the provision of Qualified Leads. Termination of a Campaign Order will not terminate any Order Form or this Agreement.
3.1 Users. Publisher is responsible for all activities conducted, or directions or instructions issued, by Publisher or under Publisher’s User logins and for Publisher’s Users’ compliance with this Agreement. Publisher is responsible for maintaining the confidentiality of User’s passwords and account login information. Publisher shall immediately notify Audyence of any unauthorized use of Publisher’s or any User’s password or account or any other breach of security of which Publisher is aware or suspects. User accounts shall not be used by more than one individual unless the account has been reassigned in its entirety to another individual, in which case the prior individual shall no longer have any right to access or use the Services. Publisher is responsible for ensuring all Users access and use the Services solely for Publisher’s benefit in accordance with this Agreement and not for any other purpose or use. Publisher shall be liable for any breach of this Agreement by any of Users. In addition to Audyence’s other remedies hereunder, Audyence reserve the right upon notice to Publisher to suspend or terminate any User’s right to access the Services if such User has violated any of the restrictions contained in this Agreement.
3.2 Restrictions on Use. Unauthorized use, resale or commercial exploitation of the Services in any way is expressly prohibited. Publisher shall not (and shall not allow any User or third party to): (i) reverse engineer, decompile, disassemble, translate, or otherwise attempt to derive the source code form or structure of the Services; (ii) access the Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Services; (iii) remove any proprietary notices, marks, labels, or logos from the Services; (iv) change, alter, modify, or create derivative works of the Services or any portion thereof; (v) circumvent, remove, alter, deactivate, degrade or thwart any of the protections in the Services, or attempt to access any area of the Services (or any Advertiser Data) to which Publisher’s access is not authorized. Except as expressly permitted in this Agreement, Publisher shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license to access and use the Services to any third-party. Publisher will not attempt to or actually re-identify any previously aggregated, unidentified, or anonymized data that is provided to Publisher as part of the Services (including, without limitation, as part of any Advertiser Data or CIR Report).
3.3 Qualified Leads. 3.3.1. Publisher will only provide the Qualified Leads resulting from genuine content engagement on behalf of the lead. Any method that artificially submits completed forms is strictly prohibited. Such prohibited methods include, but are not limited to, repeated manual submissions, using robots for automating submission/completion, third-party services that submit forms on Publisher’s behalf, incentivized programs such as paid-to-click, paid-to-surf, auto surf, rewards, and click-exchange programs, or any deceptive software. Any leads rejected by Audyence or Advertiser due to duplication, lack of qualification, and/or non-functioning or personal email addresses will be replaced with Qualified Leads by Publisher within the sooner of the subsequent cycle of delivery or seven (7) business days after the completion of a Campaign Order. Audyence reserves the right to monitor delivery of the Qualified Leads and will use commercially reasonable efforts to notify Publisher if Audyence calculates that an under-delivery is likely, and of the conditions required to remedy such shortfall. 3.3.2. Publisher is solely responsible for the provision of Qualified Leads, including the accuracy, integrity, legality, and quality of the Qualified Leads. Publisher represents and warrants that: (i) Publisher has obtained all approvals, consents, releases, and permissions as are necessary to provide the Qualified Leads (a) to Advertiser for their intended purpose, and (b) for use in connection with the Services as described herein; (ii) Qualified Leads have been lawfully collected pursuant to a prominent and publicly accessible privacy notice that satisfies the transparency, choice and other requirements of applicable Data Protection Laws; and (iii) the transfer of such data to Audyence and the applicable Advertiser and use and/or disclosure in connection with the Services will conform with all applicable Data Protection Law. Publisher represents and warrants it shall comply with all applicable laws, ordinances, codes, rules, regulations, policies, procedures and the requirements of any other public or private authority in its provision of the Qualified Leads hereunder, including without limitation all Data Protection Laws and the federal "CAN-SPAM ACT OF 2003" and any additional applicable anti-spam laws.
3.4 Acceptable Use. Neither Publisher nor its Users shall use the Services to: (a) send, upload or otherwise transmit Qualified Leads or Publisher Data that is unlawful or invasive of another’s privacy; (b) upload or otherwise transmit, display or distribute Publisher Data or Qualified Leads that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (d) interfere with or disrupt the Services or networks connected to the Services. Publisher may not use the Services for any illegal, unlawful or unauthorized purpose, or to solicit others to perform or participate in any unlawful acts. Publisher will not use the Services to submit false or misleading information. Publisher is responsible for the accuracy, integrity, legality and quality of Publisher Data.
3.5 Personal Information. To the extent that any Personal Information is contained in any User Data or Publisher Data that is Processed by Audyence solely on behalf of Publisher under this Agreement, the Audyence Data Protection Addendum applies. Publisher acknowledges that any Personal Information Processed by Publisher pursuant to a Campaign Order (including any Qualified Lead) is Processed by Publisher as a processor to Advertiser and pursuant to the instructions provided by Advertiser. As part of the Campaign Order, Publisher will agree to Advertiser’s data processing addendum.
3.6 Audit. During the term of this Agreement and for three (3) years thereafter, no more than once annually, Audyence or an independent certified public accountant selected by Audyence may, upon reasonable notice and during normal business hours, inspect the records of Publisher related to its activities under this Agreement.
3.7 No Circumvention. Publisher acknowledges and agrees that the Services may introduce Publisher to Advertisers with which Publisher does not have a preexisting relationship. Publisher acknowledges that Audyence has invested significantly, both financially and in terms of management time and effort, in cultivating relationships with such Advertisers. As such, Publisher agrees to not, directly or indirectly (either by itself, through its employees, agents or Affiliates) intentionally interfere with, usurp, circumvent, attempt to circumvent, avoid, bypass or obviate Audyence’s interest in any such Advertiser relationship, or entice away any such Advertiser, or act in a manner that would effectively change, reduce, or avoid (a) the payment of fees to Audyence, (b) the continuance of Audyence’s business relationship with any Advertiser, or (c) cause any Advertiser to cease receiving services from Audyence. In the event of any violation of this Section 3.7, in addition to all other remedies available to Audyence, Audyence may immediately terminate this Agreement upon written notice to Publisher.
4.1 Subscription Fees. Publisher agrees to pay Audyence all subscription fees set forth in the applicable Order Form (“Subscription Fees”) in accordance with this Agreement and the Order Form. If not otherwise specified on an Order Form, all Subscription Fees (except Subscription Fees subject to a good faith dispute) will be due up front. Except as otherwise specifically provided in this Agreement, all Subscription Fees paid and payable to Audyence hereunder are non-cancelable and non-refundable. All amounts payable under this Agreement are in United States dollars, and Publisher will pay all such amounts in United States dollars.
4.2 Failure to Pay Subscription Fees. If Publisher fails to pay any Subscription Fees due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of Law, (i) Audyence reserves the right to suspend the Service immediately, until such amounts are paid in full, and (ii) Audyence will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable Law until Publisher pays all undisputed amounts due.
4.3 Campaign Order Fees. For each Campaign Order, Audyence will pay the fees due to Publisher for each Qualified Lead that is accepted by the Advertiser pursuant to the terms of the applicable Campaign Order (“Campaign Order Fees”). All Campaign Order Fees are calculated on a per-Qualified Lead basis as specified in the applicable Campaign Order in the Platform. Publisher acknowledges and agrees that if Advertiser terminates a Campaign Order for any reason, Publisher is entitled to payment only for Qualified Leads actually received and accepted by Advertiser prior to the date of termination. Campaign Order Fees shall be paid to Publisher net forty-five (45) days from the date Audyence receives the corresponding fees from the applicable Advertiser. Publisher acknowledges that it is not entitled the payment of any additional fees, including, without limitation any Audyence margins, commissions or other fees charged to the Customer.
4.4 Taxes. Subscription Fees and Campaign Order Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Publisher is responsible for paying all Taxes. If Audyence has the legal obligation to pay or collect Taxes for which Publisher is responsible under this section, Audyence will invoice Publisher and Publisher will pay that amount unless Publisher provides Audyence with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Audyence is solely responsible for taxes assessable against it based on its income, property and employees.
5.1 Confidential Information. During the term of this Agreement, each party (a “Recipient”) will regard any information provided to it by the other party (a “Discloser”) and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the Discloser’s business and the industry in which it operates, is of a confidential or proprietary nature. The Services are Audyence’s Confidential Information. All Advertiser Materials are the Confidential Information of Advertiser and will be treated as the Confidential Information of Audyence for the purposes of this Agreement. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the Discloser, without any obligation of confidentiality; (ii) becomes known to the Recipient directly or indirectly from a source other than one having an obligation of confidentiality to the Discloser; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the Recipient without use of the Discloser’s Confidential Information.
5.2 Obligations of Confidentiality. Recipient shall use the same degree of care that it uses to protect its own confidential information of like kind (but in no event using less than a reasonable standard of care) to not disclose or use any Confidential Information of the Discloser except as reasonably necessary to perform Recipient’s obligations or exercise Recipient’s rights pursuant to this Agreement or with the Discloser's prior written permission. Recipient may disclose the Discloser’s Confidential Information on a need-to-know basis to its Affiliates, employees, directors, contractors, subcontractors, and service providers bound by confidentiality obligations at least as restrictive as those in this section. To the extent required by applicable law, Recipient’s disclosure of Discloser’s Confidential Information shall not be considered a breach of this Agreement provided that Recipient promptly provides Discloser with prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. Discloser shall have the right to seek injunctive relief to enjoin any breach or threatened breach of this section.
6.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) it has the authority to enter into this Agreement.
6.2 Platform Warranty. Audyence warrants that during the Term, Platform will conform, in all material respects, with its Documentation. For any breach of the above warranty, Audyence will, at no additional cost to Publisher, provide remedial services necessary to enable the Platform to conform to the warranty. Publisher will provide Audyence with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this section are Publisher’s sole remedies for breach of this warranty. This warranty will only apply if the Services have been utilized by Publisher in accordance with the Order Form and this Agreement.
6.3 Disclaimers. AUDYENCE DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET PUBLISHER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED. THE WARRANTIES STATED IN THIS SECTION 6 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY AUDYENCE. THERE ARE NO OTHER WARRANTIES MADE BY AUDYENCE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AUDYENCE IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVERTISER MATERIALS PUBLISHER MAY INTERACT WITH OR RELY ON IN CONNECTION WITH THE SERVICES.
7.1 Audyence Intellectual Property. Publisher acknowledges and agrees that as between Audyence and Publisher, all right, title and interest in and to the (i) Services (and all Audyence’s other products and services) and (ii) all improvements, derivatives, enhancements, modifications, releases, configurations, methodologies, related technologies, and the like (“Modifications”) to the Services created by any party, and (iii) any and all Intellectual Property Rights embodied in (i) and/or (ii) or associated therewith are and shall remain Audyence’s or Audyence’s licensors’ sole and exclusive property, and Audyence in no way conveys any right or interest in the Services or any Modifications other than a limited license to use the Services in accordance herewith. Audyence also retains ownership of all right, title and interest in and to all Usage Data.
7.2 Publisher Intellectual Property. Except for the license rights granted in this Agreement, as between Publisher and Audyence, Publisher retains ownership of all right, title and interest in and to all Publisher Data. Publisher hereby grants to Audyence a worldwide, non-exclusive, royalty-free right and license to (a) process and use Publisher Data in order to provide the Services; and (b) to process and use Publisher Data in combination with other data for the purpose of providing the Services, including creating CIR Reports and other aggregated data sets. You acknowledge and agree that as part of the Services, Publisher Data may be (i) made available to Advertisers, and you expressly authorize Audyence to provide Advertisers with access to Publisher Data via the Platform; and (ii) run through a large language or artificial intelligence model for the purposes of providing the Services.
7.3 Advertiser Materials. Publisher acknowledges and agrees that all right, title and interest in and to the Advertiser Materials are and shall remain Advertiser’s sole and exclusive property, and Audyence in no way conveys to Publisher any right or interest in the Advertiser Materials. Publisher understands that the Services may make available access to certain Advertiser Data that is provided by Advertisers in their sole discretion. Audyence neither controls nor endorses, nor is Audyence responsible for, any Advertiser Data, including the accuracy, validity, completeness, reliability, quality, or legality of Advertiser Data, or any Intellectual Property Rights therein. Nothing in this Agreement shall be deemed to be a representation or warranty by Audyence with respect to any Advertiser Data. Audyence has no obligation to monitor Advertiser Data, provided, however, Audyence may block or disable access to any Advertiser Data (in whole or part) through the Platform at any time. In addition, the availability of any Advertiser Data through the Services does not imply Audyence’s endorsement of, or Audyence’s affiliation with, any Advertiser or other provider of such Advertiser Data.
7.4 Usage Data. Publisher acknowledges and agrees that during the term of this Agreement and thereafter, Audyence may collect, analyze, copy, display and use Usage Data for the purposes of providing, operating, analyzing, and improving the Services and other Audyence products and services. Audyence may disclose Usage Data to its partners, customers, and on its public facing website for the purposes of benchmarking and online marketing, provided however Audyence will not disclose any Usage Data unless it is in an aggregated and anonymized format that would not permit a third party to identify the data as associated with Publisher or any individual. Audyence may use Usage Data for machine learning to support and develop features and functionality with the Services and to test, validate, and improve the performance of the artificial intelligence models used by the Services. Publisher acknowledges that when Usage Data is run through the software and artificial intelligence models, such Usage Data teaches, trains, and improves the software, artificial intelligence models, and Services (such improvements, “Machine Learning”), any such Machine Learning cannot be “unlearned” even if the Usage Data is deleted.
AUDYENCE WILL NOT BE LIABLE TO PUBLISHER OR ANY THIRD PARTY FOR LOSS OF PROFITS, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA AND LOST PROFITS AND COSTS, IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES, OR THE PERFORMANCE OF ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES. AUDYENCE’S TOTAL CUMULATIVE LIABILITY TO PUBLISHER FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID UNDER THE ORDER FORM OR THE CAMPAIGN ORDER WHICH FORMS THE SUBJECT OF THE CLAIM DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS SET FORTH ABOVE DO NOT APPLY TO ANY CLAIM THAT CANNOT BE LIMITED BY APPLICABLE LAW. Except for actions of non-payment, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two (2) years after the cause of action has accrued.
9.1 Term. This Agreement will begin on the Effective Date as set forth above and will continue until otherwise terminated under this Section 9. The Term of each Order Form shall be set forth on the Order Form. Except as otherwise specified in the applicable Order Form, subscriptions to the Services will automatically renew for additional terms equal to the expiring Term, unless and until either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then-current Term. Any renewal may be subject to an annual fee increase upon written notice by Audyence.
9.2 Suspension. Audyence shall have the right to suspend Publisher’s access to the Services if Publisher's actions pose a material security risk to or may otherwise materially damage or harm the Services or the underlying infrastructure, or if Publisher burdens or uses the Services for a purpose not permitted by the Agreement, applicable law or administrative order or in such a manner that jeopardize the provision of the Services to other customers, or if Publisher is in material breach of any obligation set forth in Section 3. Where feasible, Audyence will use commercially reasonable efforts, taking into consideration the circumstances, to provide Publisher with prior written notice of any such suspension.
9.3 Termination. Either party may terminate this Agreement or any Order Form (i) immediately in the event of a material breach of this Agreement or any such Order Form by the other party that is not cured within thirty (30) days of written notice from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Form or Campaign Order will not terminate this Agreement. Termination of this Agreement will, however, terminate all outstanding Order Forms and Campaign Orders. Either party may also terminate this Agreement by providing 30 days’ prior written notice to the other party, only if there are no outstanding Order Forms or Campaign Orders then currently in effect.
9.4 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, Audyence will no longer provide the applicable Services to Publisher, and Publisher will stop using the Services. Publisher will pay Audyence for all Subscription Fees that had accrued prior to the termination date. Upon termination of this Agreement, each party will promptly return or destroy all Confidential Information of the other party in its possession. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.
10.1 Audyence Indemnification. Audyence will indemnify, defend and hold Publisher harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by a third party against Publisher alleging that the use of the Services as permitted hereunder infringes any United States patent, copyright or trademark, or constitutes a misappropriation of a trade secret of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services in violation of this Agreement or applicable Law, (b) use of the Services after Audyence notifies Publisher to discontinue use because of an infringement claim, (c) any claim relating to any Advertiser Materials, (d) any claim relating to Publisher Data, (e) modifications to the Services made by anyone other than Audyence, (f) the combination, operation, or use of the Services with software, materials, data or equipment which was not provided by Audyence, or (g) compliance by Audyence with Publisher custom requirements or specifications. If the Services are held to infringe, Audyence will, at Audyence’s own expense, in Audyence’s sole discretion use commercially reasonable efforts either (a) to procure a license that will protect Publisher against such claim without cost to Publisher; (b) to replace the Services with non-infringing Services without material loss of functionality; or (c) if (a) and (b) are not commercially feasible, terminate this Agreement or the applicable Order Form and refund to Publisher any prepaid unused fees paid to Audyence for the infringing Services. The rights and remedies granted to Publisher under this Section 10.1 state Audyence’s entire liability, and Publisher’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
10.2 Publisher Indemnification. Publisher shall indemnify, defend, and hold Audyence and Advertisers harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against Audyence or any Advertiser that arises out of or results from a claim resulting from Publisher’s breach of Section 3 (Obligations).
10.3 Procedure. The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).
11.1 Entire Agreement. This Agreement, including all Order Forms and Campaign Orders, contains the entire agreement between the parties, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. Only a written amendment that refers to this Agreement or the applicable Order Form and that is signed by both parties may amend this Agreement or such Order Form. A Campaign Order may only be modified if agreed to by the Advertiser and Audyence via the Platform. In the event of any conflict between the terms of this Agreement and any Order Form, this Agreement shall control, unless such Order Form expressly states that it is to control. In the event of any conflict between the terms of this Agreement and the terms of a Campaign Order, the terms of the Agreement shall control.
11.2 Assignment. This Agreement shall be binding upon and for the benefit of each party and their permitted successors and assigns. Either party may assign this Agreement and all Order Form as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, Audyence may use independent contractors or subcontractors to assist in the delivery of Services; provided, that Audyence remain liable for the actions or omissions of the independent contractors or subcontractors and for the payment of their compensation.
11.3 Feedback. Publisher acknowledge that any suggestions, comments, improvements, ideas, requests for Modifications or feedback provided to Audyence relating to the Services or any of Audyence’s other services (“Feedback”) are voluntarily provided by Publisher, and Publisher agrees that the Feedback may be used by Audyence without compensation, accounting or attribution to Publisher, and Publisher hereby grants Audyence a transferable, sublicensable, worldwide, perpetual, irrevocable, royalty-free, fully paid up right and license to freely exploit and make available all Feedback.
11.4 Advertiser Rights. Publisher acknowledges and agrees that each and every Advertiser (and any such Advertiser’s Affiliates) with whom Publisher enters a Campaign Order is a third-party beneficiary of this Agreement and upon Publisher’s agreement to enter into any such Campaign Order, the applicable Advertiser has the right (and will be deemed to have accepted the right) to enforce this Agreement against Publisher as a third-party beneficiary thereof.
11.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, USA without regard to its conflict of law provisions. Any dispute arising between the parties will be settled in an action commenced and maintained in any court sitting in Travis County, TX. The parties irrevocably consent and submit to the exclusive personal jurisdiction of such courts if there is any dispute between them and agree not to challenge or assert any defense to the jurisdiction of such courts.
11.6 Relationship of the Parties. Each party is an independent contractor, and nothing in this Agreement shall be construed as a partnership or creating the relationships of employer and employee, or principal and agent, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.
11.7 Force Majeure. Except for the obligation to make payments, non performance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
11.8 Notices. All legal notices shall be in writing and effective upon: (i) personal delivery, (ii) one (1) business day after deposit with a recognized overnight courier for U.S. deliveries (or three (3) business days for international deliveries), or (iii) the day of sending by email (except for notices of indemnifiable claims), if to Audyence then to legal@audyence.com, or if to Publisher then to the email address on the applicable Order Form, in each case with the words “Legal Notice” in the subject line. Billing-related notices to Publisher may be provided by email to the relevant billing contact designated by Publisher in the applicable Order Form.
11.9 Modifications. Audyence may make modifications to the Services or particular components of the Services from time to time provided that such modifications do not materially degrade any functionality or features of the Services.
11.10 Waiver and Severability. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
11.11 Insurance. Each of Audyence and Publisher shall maintain at least the following minimum insurance requirements: commercial general liability insurance with a limit of not less than US$1,000,000 per occurrence/US$2,000,000 in the aggregate. Each party shall provide a certificate of insurance upon the other party’s request.
