Last updated: July 28, 2023
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “PLACE ORDER,” “I ACCEPT,” OR BY OTHERWISE ACCESSING OR USING THE AUDIENCE.CO, INC. (“AUDIENCE.CO”) ROBOTIC HANDWRITTEN NOTES SERVICE DESCRIBED AT WWW.AUDIENCE.CO, AS IT MAY BE UPDATED FROM TIME TO TIME IN AUDIENCE.CO’S SOLE DISCRETION (THE “SERVICE”), THE PARTY PLACING AN ORDER THROUGH WWW.AUDIENCE.CO (“CUSTOMER” OR “YOU”) AGREES THAT THEY HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO USE OF THE SERVICE, AGREES TO BE BOUND BY, THE FOLLOWING TERMS OF SERVICE (THE “TERMS”). TO THE EXTENT CUSTOMER RECEIVES ANY LICENSED INFORMATION (AS DEFINED IN THE DATA LICENSE ADDENDUM ATTACHED HERETO AS EXHIBIT A (THE “DLA”)) FROM AUDIENCE.CO, THE DLA IS INCORPORATED BY REFERENCE AND FORMS AN ESSENTIAL PART OF THESE TERMS. THE PROVISION OF LICENSED DATA IS IN ADDITION TO, AND NOT PART OF, THE SERVICE AND AUDIENCE.CO SHALL PROVIDE LICENSED INFORMATION TO CUSTOMER IN ITS SOLE DISCRETION. IN THE EVENT OF ANY CONFLICT BETWEEN THE DLA AND THESE TERMS, THE DLA SHALL GOVERN.
Customer must be at least 18 years old to use the Service. By agreeing to these Terms, Customer represents and warrants to Audience.co that: (a) Customer is at least 18 years old; (b) Customer has not previously been suspended or removed from the Service; and (c) Customer’s registration and use of the Service is in compliance with any and all applicable laws and regulations. If Customer is an entity, organization, or company, the individual accepting these Terms on Customer’s behalf represents and warrants that they have authority to bind Customer to these Terms and Customer agrees to be bound by these Terms.
These Terms are effective upon the date (the “Effective Date”) of execution of an online order and checkout process referencing these Terms (each, an “Order” and together with these Terms, the “Agreement”), by and between Audience.co and the party named as Customer in the Order. The Agreement governs the provision by Audience.co to the Customer of access to the Service. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements.
⦁ Audience.co Service.
1.1 Access to the Service. During the Term and subject to Customer’s compliance with the terms of this Agreement, Audience.co shall provide Customer with non-exclusive access to the Service and grants Customer the right to access and use the Service solely for its own business purposes.
1.2 Users. Access to the Service is made available on a per-send (i.e., number of handwritten notes sent) pricing model, with each user (a “User”) having unique log-in credentials. Customer will ensure that Users maintain the confidentiality of their log-in credentials and will be responsible for Users’ compliance with this Agreement.
⦁ Billing and Payments.
2.1 Pricing Structure.
2.1.1 One pricing model for the Service involves an annual subscription that is billed monthly, quarterly or annual pre-paid (via credit card or ACH, except as otherwise agreed in writing by Audience.co) account balance (an “Account Balance”) which is drawn against for Customer’s purchase of handwritten note “sends” in connection with its orders via the Service (“Send Fees”). If there is not a sufficient amount of money available on Customer’s Account Balance at the time Customer incurs Send Fees, Audience.co may, in its discretion (i) refuse to complete the requested send (each, a “Send”), or (ii) bill Customer at such time for the required Send Fees. Fees charged are as described on the applicable Order and are not refundable. Account Balances with unused Sends will roll over to the next subscription month (one month maximum).
2.1.2 Audience.co also has a pay-as-you-go (“PAYG”) model that allows customers to purchase Send credits on an as-needed basis and pre-paid basis (also non-refundable). After Customer initiates a campaign of Sends via the Service, the campaign may not be paused or terminated unless Audience.co expressly agrees otherwise, in its sole and absolute discretion.
2.2 Modifying Your Subscription. If you choose to upgrade a subscription plan during a subscription month, any incremental cost will be pro-rated over the remainder of the then-current month, payable upon the date of such change. For each subsequent subscription month, unless otherwise agreed in writing, your subscription will renew with the total number of Sends, including any Sends added during the prior subscription month. There are no refunds or credits for plan downgrades, reductions in number of Sends or unused Account Balance. If you are a PAYG customer, your Audience.co account will remain open and active as long as you have purchased Sends within the past twelve (12) months.
2.3 Late Charges. Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.
2.4 Taxes. Customer is solely responsible for payment of any taxes resulting from the use of the Service. If any such taxes are required to be withheld, Customer shall pay an amount to Audience.co such that the net amount payable to Audience.co after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
2.5 Billing Disputes. Audience.co, in its sole and reasonable discretion, shall be the final arbiter in any billing disputes between the parties in connection with this Agreement.
⦁ Audience.co Service.
3.1 Audience.co Intellectual Property Rights and Restrictions. Audience.co shall retain all intellectual property rights in the Service, including any and all derivatives, changes and improvements thereof, and Customer agrees that it obtains no intellectual property rights or licenses by this Agreement except those expressly granted herein. Customer hereby grants Audience.co a non-exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions, feedback, or service improvements given by Customer pertaining to the Service. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service; (ii) not represent that it possess any proprietary interest in the Service; (iii) not directly or indirectly, take any action to contest Audience.co’s intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of Audience.co.
⦁ Customer Content.
4.1 Ownership. All data, information, files or other materials and content that Customer makes available to Audience.co for the purpose of utilizing the Service (“Customer Content”) shall remain the sole property of Customer.
4.2 License to Audience.co. Customer hereby grants Audience.co a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Customer Content, to the extent required to perform the Service and, in the case of note content sent by Customer via the Service, to make such content available to other Audience.co customers, provided that no such shared content allows any third party to identify Customer or its Users in any manner.
5.1 Nondisclosure. Each party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this Agreement and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected unauthorized use or disclosure of Confidential Information and shall provide reasonable assistance to the Disclosing Party in the investigation and prosecution of any such unauthorized use or disclosure. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation and without the need to designate as confidential, the terms and conditions of this Agreement. For the avoidance of doubt, Licensed Information (as defined in the DLA) constitutes the Confidential Information of Audience.co notwithstanding that portions of the Licensed Information may be derived in whole or in part from publicly available sources.
5.2 Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
⦁ Representations and Warranties.
6.1.1 Each party represents and warrants that (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement, and (b) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
6.1.2 Customer additionally represents and warrants that (a) the Customer Content does not infringe upon any third party’s proprietary rights, including intellectual property rights; (b) Customer will use the Service in compliance with all applicable laws and regulations, including but not limited to, the CAN-SPAM Act, the Federal Trade Commission Act, the Federal Communications Act, the Telephone Consumer Protection Act (TCPA), the Telemarketing Sales Rule, applicable state Do Not Call List requirements, and other laws applicable to the jurisdictions in which Customer may send items via the Service; and (c) it will not use the Service to provide inappropriate Content, which includes, but is not limited to, Content that: (i) promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography, adult-oriented content such as phone sex or escort services, expletives, or inappropriate language; (ii) promotes violence or the use of illegal substances or activities such as how to build a bomb, counterfeiting money, and software pirating; (iii) promotes illegal or unethical activity, racism, hate, “spam”, mail fraud, gambling, sweepstakes, pyramid schemes, or illegal advice; (iv) is otherwise prohibited by federal or state law; and/or (v) targets or collects information from anyone under the age of eighteen (18) years of age.
6.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, AUDIENCE.CO PROVIDES THE USAGE OF THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, AUDIENCE.CO DOES NOT WARRANT THAT (I) THE SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED WITHOUT MISTAKE OR INTERRUPTION OR (II) CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICE.
7.1 Customer’s Indemnities. Customer shall defend, indemnify and hold harmless Audience.co and its officers, directors, consultants, employees, successors and permitted assigns, from and against any third-party claim, suit or proceeding and all resulting damages, costs, losses, awards and reasonable attorneys’ fees (collectively, a “Claim”), arising out of or relating to (a) the use or display of any Customer Content; (b) Customer’s breach of its warranties under Section 6.1 of this Agreement; (c) Customer’s use of the Service in any manner that violates this Agreement or applicable laws, rules or regulations; or (d) any harm suffered or alleged to be suffered by any third party caused by or in connection with items sent by Customer via the Service. If Customer receives any Licensed Information from Audience.co pursuant to the DLA, Customer agrees to defend, indemnify and hold harmless Audience.co and its suppliers and/or licensors (expressly including third-party data providers) from and against any claims, demands, suits, liabilities, losses, damages, costs, charges, and expenses, including without limitation reasonable attorneys’ fees and costs, related to or arising from use of the Licensed Information by Customer.
7.2 Audience.co’s Indemnities. Audience.co shall, at its expense, either defend Customer from or settle any Claim brought by a third party against Customer to the extent arising out of or relating to an allegation that the Service infringes any intellectual property right of a third party. Audience.co will indemnify Customer from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under this Section 7.2; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under this Section 7.2 (other than attorneys’ fees and costs incurred without Audience.co’s consent after Audience.co has accepted defense of the Claim); and (c) all amounts that Audience.co agrees to pay to any third party to settle any Claim under this Section 7.2.
⦁ Limitation of Liability.
8.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL AUDIENCE.CO BE LIABLE FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT AUDIENCE.CO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY DAMAGES CAUSED BY CUSTOMER’S USE OF THE SERVICE OR IN CONNECTION WITH ANY ITEMS SENT BY CUSTOMER.
8.2 MAXIMUM AGGREGATE LIABILITY. AUDIENCE.CO’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO AUDIENCE.CO DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES.
⦁ Term; Termination.
9.1 Term. These Terms shall commence on the Effective Date and shall remain in effect for so long as there is a valid Order in effect or until terminated as provided herein (the “Term”). Unless otherwise specified in the Order, each Order shall have an initial subscription period of at least twelve (12) months and will automatically renew for successive 12-month periods unless written notice of non-renewal is given by either party at least 60 days prior to the end of the then-current subscription year.
9.2 Termination. Either party may terminate these Terms (i) for the other party’s material breach, if the breaching party does not cure such breach within 60 days after receipt of written notice specifying in detail the nature of the breach, effective upon the expiration of such 60-day period, or (ii) upon notice if the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
9.3 Effect of Termination. Upon termination or expiration of these Terms, Customer will immediately cease use of the Service and these Terms shall terminate and be of no further force or effect, provided that the following provisions shall survive any expiration or termination of this Agreement: (i) the obligation of Customer to pay Send Fees incurred prior to termination; (ii) Section 3.1 (Audience.co Intellectual Property Rights and Restrictions), (iii) Section 5 (Confidentiality); Section 6.2 (Disclaimer of Warranties); Section 7 (Indemnification); Section 8 (Limitation of Liability); and Section 10 (Miscellaneous). For the avoidance of doubt, certain sections of the DLA shall also survive termination of these Terms, as further described in the DLA.
10.1 Amendments. These Terms may be amended by Audience.co from time to time in its sole discretion. In the event of such an amendment, Audience.co will notify Customer of such update via email and provide Customer 30 days to object to such amendment. If Customer does not object within such period, the amended Terms will be effective with respect to Customer upon the end of such 30-day period. If Customer does object, the Terms in effect immediately prior to such amendment will remain in effect until the end of the then-current subscription year, and the amended Terms will go into effect upon the beginning of the next subscription year, if the Agreement is renewed pursuant to the terms of the Order.
10.2 Dispute Resolution. This Agreement is governed by the laws of the State of Florida, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the state and federal courts in Miami-Dade County, Florida, and each party irrevocably submits to the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The parties will first attempt to settle any dispute concerning this Agreement through a half-day, non-binding, virtual mediation session (e.g., Zoom videoconference) with a mutually-acceptable mediator.
10.3 Class Action Waiver. Both parties agree that all claims brought against the other must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding, except to the extent such restriction is prohibited by applicable law.
10.4 Assignment. Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
10.5 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email.
10.6 Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
10.7 Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
10.8 Force Majeure. Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party’s failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, labor strikes, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions.
10.9 Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior approval, which shall not be unreasonably withheld or denied; provided that Customer hereby approves the display by Audience.co of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to Audience.co.
10.10 Third-Party Beneficiaries. Audience.co’s third-party data providers are expressly acknowledged as third-party beneficiaries of these Terms.