AudioEye Terms of Service
Last updated: October 18, 2023
These Terms of Service (these “Terms”) govern Customer’s relationship with AudioEye, Inc. (“AudioEye”) and the use of any Offering. By signing an Order that references these Terms, acquiring the right to use an Offering through an AudioEye Platform, acquiring the right to use an Offering through an authorized Reseller or otherwise using an Offering (including using an AudioEye Website), Customer agrees to these Terms. If you are agreeing to these Terms on behalf of another company, entity or other person, “Customer” will refer to such company, entity or other person. Capitalized terms not otherwise defined in the Agreement will have the definitions set forth in these Terms.
These Terms contain a mandatory individual arbitration, class action waiver and jury trial waiver provision. The provision requires the use of arbitration on an individual basis to resolve disputes, rather than the use of jury trials or class actions, unless Customer opts-out on a timely basis. These Terms should be reviewed carefully.
1. AudioEye Offerings; License
Customer can acquire the right to use an Offering (i) directly from AudioEye by signing an Order (but not through an AudioEye Platform) (“Enterprise Offering”), (ii) directly from AudioEye through an AudioEye Platform (“Platform Offering”), or (iii) by contracting with an authorized Reseller (“Reseller Offering”).
Enterprise Offerings. If Customer acquired the right to use an Enterprise Offering and subject to the terms of the Agreement, AudioEye grants Customer a limited, non-exclusive, non-transferable license to access, install, implement and use the Enterprise Offering during the term for Customer’s direct business purposes as described in the Order.
Platform Offerings; Automatic Upgrades. If Customer acquired the right to use a Platform Offering and subject to the terms of the Agreement, AudioEye grants Customer a limited, non-exclusive, non-transferable license to access, install, implement and use the Platform Offering during the term for Customer’s direct business purpose as described in an AudioEye Platform. Customer agrees that the level or plan of any Platform Offering may be automatically upgraded based on usage including pages views per month. Automatic upgrades provide for higher levels of usage and provide for higher Fees, with pricing schedules referenced within Customer’s Account. AudioEye will notify Customer of an upgrade, and once an Offering is automatically upgraded, it will remain available for the higher level of usage for the remainder of the applicable term. Additional Fees due to automatic upgrades will be prorated and charged to the payment method active on the Account at the time of upgrade. IN LIGHT OF THE FOREGOING, CUSTOMER AGREES TO MONITOR USAGE OF ANY PLATFORM OFFERING.
Reseller Offerings. If Customer acquired the right to use a Reseller Offering through an authorized Reseller, any rights to use the Reseller Offering is subject to any agreement between Customer and the authorized Reseller. Any such rights will be subject to the terms included in any agreement between AudioEye and the authorized Reseller and in no event will exceed the resale rights granted to the authorized Reseller.
2. Restrictions; Customer Obligations
Customer Restrictions. Customer will not (i) access or use the Offerings except as expressly provided in the Agreement; (ii) use the Offerings in any unlawful manner or in any other manner that could damage, disable, overburden or impair the functionality, security or other operation of the Offerings; (iii) use automated scripts to collect information from or otherwise interact with the Offerings; (iv) alter, modify, reproduce or create derivative works of the Offerings; (v) sell, trade or otherwise transfer the Offerings to any third party; (vi) reverse engineer, disassemble, decompile or otherwise attempt to derive the method of operation of the Offerings; (vii) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Offerings; (viii) monitor the availability, performance or functionality of the Offerings; (ix) interfere with the use, operation or hosting of the Offerings; or (x) robotically or otherwise automatically harvest, scrape, extract, copy, access or collect any information or data from, or using, the Offerings.
Website-Specific Offerings. For Offerings designed for use with Customer Website (a “Website Offering”), Customer may be required (i) to embed software code made available by or on behalf of AudioEye (“Installed Code”) on Customer Website and (ii) to provide AudioEye with access to Customer Content to permit delivery by AudioEye of the Website Offering. AudioEye is not responsible for Customer’s failure to embed any necessary Installed Code or otherwise provide such access. Without limitation on any disclaimers herein, Customer acknowledges that AudioEye tests Website Offerings in a desktop environment using the latest two versions of any browser with over 5% market share as determined by AudioEye. Customer acknowledges that Website Offerings may provide AudioEye with control to apply changes to the rendered document object model of Customer Website.
Account and Customer Platform. AudioEye may provide Customer with one or more accounts (each, an “Account”) to access certain features of Offerings or acquire the rights to use Offerings via an AudioEye Platform. Customer may be assigned, or may assign, username(s), password(s) or other Account related information (collectively, “Account Access Information”) to access an Account. Customer will not provide any third party with the right to access or use an Account, and Customer is solely responsible for the use of an Account. Customer will ensure the security and confidentiality of any Account Access Information and will promptly notify AudioEye of any known or suspected unauthorized use of an Account, or any known or suspected breach of security, loss, theft or unauthorized disclosure of Account Access Information.
3. Intellectual Property; Feedback
Ownership. AudioEye (and its licensors, as applicable) retain all right, title, and interest in and to the Offerings and Technology and all copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, contract rights and any other proprietary rights (collectively, “Intellectual Property Rights”) therein and related thereto. Except as explicitly provided in these Terms, AudioEye grants no rights to any Intellectual Property Rights, and AudioEye reserves all other rights in the Offerings, Technology and Intellectual Property Rights not explicitly granted in these Terms.
AudioEye Marks. The AudioEye name and logo and all other trademarks appearing in the Offerings (“AudioEye Marks”) are the property of AudioEye. Customer is not granted any license or other right to use any AudioEye Marks other than as part of Customer’s permitted use of the Offerings.
Feedback. Customer may provide suggestions, comments, or other feedback to AudioEye regarding the Offerings or Technology (“Feedback”). Customer grants to AudioEye a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use Feedback for any purpose.
4. Fees; Late Payments; Payment Information; Other
Fees. Customer will pay Fees as specified in the applicable Order or as described in an AudioEye Platform. Unless otherwise stated in the Order, all Fees are due and payable in advance of the period to which such Fees are applicable and are in US Dollars. Customer will pay all Fees without withholding or deduction. All Fees are non-refundable once paid (including upon any termination or suspension of any Offering), provided, however, in the event Customer terminates an Order for AudioEye’s uncured material breach of such Order, AudioEye will provide Customer a pro-rata refund of any prepaid, but unused Fees relating to the Order (but only to the extent any services have not been provided related to such Fees).
Fees for Subscription Offerings. For Subscription Offerings with a month-to-month term, the Fees for any automatically renewed term will equal the Fees owed for the immediately prior term, provided, however, AudioEye may increase the Fees following notice prior to the end of the then current Subscription Offering term. For Subscription Offerings with a term that is 12 months or longer, the Fees for any automatically renewed term will equal the Fees owed for the immediately prior term, provided, however, AudioEye may increase the Fees following written notice of at least sixty (60) days prior to the end of the then-current Subscription Offering term. For Subscription Offerings with a term that is 12 months or longer, the Fees attributable to each consecutive 12-month period within the term are due and payable in advance of each such 12-month period.
Late Payments; Costs. If Customer fails to pay any amounts due under the Agreement, AudioEye may charge interest at a monthly rate equal to the lesser of 1.5% per month or the highest lawful rate from the due date until the overdue amount (plus interest) is paid in full.
Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes”). Customer will pay all Taxes associated with any Offerings, excluding taxes on AudioEye’s net income.
Payment Information. Customer is responsible for the accuracy of all billing and payment information. With respect to a Platform Offering, Customer (i) authorizes AudioEye to charge the credit card or debit card or debit the bank account provided to AudioEye (the “Payment Method”) for all Fees and other amounts owed under the Agreement, and (ii) agrees either to maintain the right to use the Payment Method for payment of all Fees and other amounts owed under the Agreement or, prior to such right expiring or otherwise terminating, to provide AudioEye with updated information for a new Payment Method to enable AudioEye to ensure payment of all Fees and other amounts owed under the Agreement (and authorized AudioEye to charge or debit such Payment Method for payment of all Fees and other amounts owed under the Agreement). With respect to a Platform Offering, AudioEye reserves the right to require Customer to pay, and Customer authorizes AudioEye to charge any Payment Method for, any third-party fees associated with AudioEye’s cost of processing a payment using a Payment Method, including but not limited to credit card fees and foreign transaction fees. If any credit card, debit card, or bank account charges are rejected, dishonored or reversed, Customer agrees to promptly pay any applicable charges or costs plus any interest upon demand by AudioEye.
Page View Overage Fee for Website Offering. If Customer acquired the right to use a Website Offering as an Enterprise Offering, at the end of each month beginning with the 1st year anniversary of the Term Start Date, AudioEye will calculate whether the actual number of page views averaged over all applicable Customer Website(s) for the 12-month period prior to such month exceeds (i) the estimated number of page views averaged over all applicable Customer Website(s) per month in the applicable Order (ii) multiplied by 12. For such month and each month thereafter during the Term, if such pageviews exceed such amount, Customer will owe AudioEye $400 for every 1,000,000 in pageviews (rounded up) above such estimate.
Trial Offerings. For any Trial Offering provided on a trial basis, all access to and use of the Trial Offering may, at the end of the trial period, convert into a Fee-based Offering for the term identified in the Order or as described in an AudioEye Platform, unless Customer provides AudioEye with notice of termination prior to the end of the applicable trial period.
5. Term and Termination; Temporary Suspension
Term of Agreement and Order. The term of the Agreement will start on the Term Start Date and will end once all Offerings subject to the Agreement (including the expiration or termination of any renewals of any Subscription Offerings) have expired or are terminated or the Agreement is earlier terminated as set forth herein. The term of each Order will begin on the Term Start Date and will end once all Offerings subject to the Order (including the expiration or termination of any renewals of any Subscription Offerings) have expired or are terminated or the Order is earlier terminated as set forth herein. The term of any Subscription Offering acquired as a Platform Offering will begin on the date the right to use is acquired as described in an AudioEye Platform and end as described in an AudioEye Platform (including the expiration or termination of any renewals of such Subscription Offerings).
Automatic Renewal of Subscription Offerings. For Subscription Offerings with a month-to-month term, the term of any Subscription Offering will automatically renew for successive monthly terms unless Customer provides AudioEye with notice of its intent not to renew such Subscription Offering prior to the end of the then-current term. For Subscription Offerings with a term of 12 months or longer, the term of the Subscription Offering will automatically renew for successive terms of equal duration unless otherwise stated in an applicable Order or either party sends notice of non-renewal to the other party no later than thirty (30) days prior to the end of the then-current term.
Early Termination. One party may terminate an Order upon written notice to the other party if the other party materially breaches such Order and such material breach remains uncured for thirty (30) days following receipt of such notice. One party may terminate the Agreement upon written notice to the other party if (i) the other party materially breaches the Agreement and such material breach remains uncured for thirty (30) days following receipt of such notice, or (ii) the other party is dissolved or liquidated or takes any corporate action for such purpose; becomes insolvent or is generally unable to pay its debts as they become due; becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; makes or seeks to make a general assignment for the benefit of its creditors; or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
Effect of Termination. Upon any termination or expiration of the Agreement, all Orders will automatically terminate, and all Fees and other amounts owed under the Agreement will become immediately due and payable. Upon termination or expiration of an Order, (a) all rights to Offerings under the Order will immediately terminate; (b) Customer will immediately cease all use of the applicable Offering; (c) Customer will immediately remove the Offerings from its websites; and (d) all Fees and other amounts owed under the Order will become immediately due and payable.
Suspension. AudioEye may suspend Customer’s access to the Offerings if (i) Customer fails to pay any Fees in a timely manner, (ii) AudioEye reasonably believes that Customer is violating the Agreement, or (iii) Customer’s use of the Offerings violates applicable law or presents a risk of harm, loss, or liability to AudioEye or any third party.
6. Customer Content; Personal Data
Section 6 of these Terms shall only apply to the extent Customer acquires the right to use an Enterprise Offering.
Customer Content. Customer is solely responsible for the procurement, accuracy, legality and content of Customer Content. Customer hereby grants AudioEye the right to use Customer Content to enable AudioEye to provide the Offerings and to support Customer under this Agreement. Customer represents that it is legally able provide Customer Content to AudioEye for such use.
Section 7 of these Terms shall only apply to the extent Customer acquires the right to use an Enterprise Offering.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential at the time of disclosure, or that is of a nature, or is disclosed in such a manner, such that a reasonable person would recognize it as confidential, including but not limited to: customer information, marketing information, financial information, data, business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, contracts, and customer lists. The following information will not be considered Confidential Information: (a) information that is publicly available through no fault of the party that was obligated to keep it confidential; (b) information that was known by a party prior to commencement of discussions regarding the subject matter of the Agreement; (c) information that was independently developed by a party; and (d) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure.
Receiving Party Obligations. The Receiving Party will maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the Disclosing Party’s prior written consent. The Receiving Party will only use the Confidential Information for the purposes of the Agreement and will protect the Disclosing Party’s Confidential Information with the same degree of care that it uses to protect its own confidential information. The obligations in Section 7 (Confidentiality) will continue for three (3) years following the Disclosing Party’s initial disclosure of the Confidential Information, except for Confidential Information that is considered trade secret, which will be subject to these confidentiality obligations for so long as the Confidential Information remains a trade secret.
Exceptions. If the Receiving Party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any Confidential Information, the Receiving Party will (to the extend it is permitted to do so) notify the Disclosing Party of such circumstances and will limit such disclosure to the minimum necessary disclosure.
8. Customer Warranties
Authority and No-Conflict. Customer represents and warrants that it has full power and authority to enter into the Agreement and to perform its obligations under the Agreement and that the Agreement will not conflict with or result in a breach of any other agreement to which such party is a party or by which such party is bound.
Customer Content. Customer represents and warrants that it has the authority to permit AudioEye to use Customer Content to enable AudioEye to provide the Offerings and to support Customer under this Agreement.
9. AudioEye Warranties with Respect to Enterprise Offerings
Section 9 of these Terms shall only apply to the extent Customer acquires the right to use an Enterprise Offering.
Authority and No-Conflict. AudioEye represents and warrants that it has full power and authority to enter into the Agreement and to perform its obligations under the Agreement and that the Agreement will not conflict with or result in a breach of any other agreement to which such party is a party or by which such party is bound.
Support Obligations. AudioEye represents and warrants that (i) it will not knowingly introduce any viruses, Trojan horses, worms, spyware, or other such malicious code into the Enterprise Offering, and (ii) AudioEye will provide support for the Enterprise Offering as specified at https://www.audioeye.com/sla (the “SLA”).
10. Disclaimer; Limitation of Liability
DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 9 (AUDIOEYE WARRANTIES WITH RESPECT TO ENTERPRISE OFFERINGS), ALL OFFERINGS AND TECHNOLOGY ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING ALL STATUTORY AND IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT. AUDIOEYE’S OFFERINGS DO NOT GUARANTEE ACCESSIBILITY OR COMPLIANCE, OR OTHERWISE REMEDIATE ANY NON-REMEDIATED ITEMS SOLELY EXCEPT WITH RESPECT TO A LIMITED GUARANTEE THAT AUDIOEYE MAY PROVIDE AND SOLELY TO THE EXTENT SUCH LIMITED GUARANTEE IS PROVIDED IN WRITING IN AN ORDER AND EXPLICITLY LABELED AS A GUARANTEE. CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH ANY OFFERING IS TERMINATION OF THE UNDERLYING ORDER OR REPEAT OF THE OFFERING.
LIMITATION OF TYPES OF DAMAGES AND CLAIMS. IN NO EVENT WILL ANY OF THE AUDIOEYE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OFFERING, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, INCLUDING LOST PROFITS, LOST DATA, LOST REVENUES, OR LOSS OF BUSINESS OR OPPORTUNITY, EVEN IF AN AUDIOEYE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY ORDER (SOLELY EXCEPT WITH RESPECT TO A LIMITED GUARANTEE THAT AUDIOEYE MAY PROVIDE AND SOLELY TO THE EXTENT SUCH LIMITED GUARANTEE IS PROVIDED IN WRITING IN AN ORDER AND EXPLICITLY LABELED AS A GUARANTEE), (I) IN NO EVENT WILL ANY OF THE AUDIOEYE PARTIES FOR ANY DAMAGES (WHETHER DIRECT OR OTHERWISE) OR SUBJECT TO ANY INDEMNIFICATION, HOLD HARMLESS OR DEFENSE OBLIGATIONS ARISING OUT OF, RELATING TO OR RESULTING FROM ANY THIRD PARTY CLAIM ALLEGING THAT ANY WEBSITE, TOOL OR APPLICATION SUBJECT TO ANY OFFERING IS NOT COMPLIANT WITH ANY LAWS, REGULATIONS, GUIDELINES OR STANDARDS RELATING TO ACCESSIBILITY, INCLUDING WITHOUT LIMITATION THE AMERICANS WITH DISABILITIES ACT, THE UNRUH CIVIL RIGHTS ACT, THE REHABILITATION ACT OR ANY WEB CONTENT ACCESSIBILITY GUIDELINES AND (II) CUSTOMER COVENANTS NOT TO BRING OR ASSERT ANY CLAIM AGAINST ANY OF THE AUDIOEYE PARTIES RELATING TO SUCH THIRD PARTY CLAIM.
LIMITATIONS ON LIABILITY. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF ALL OF THE AUDIOEYE PARTIES UNDER THIS AGREEMENT OR RELATING TO ANY OFFERING EXCEED THE FEES PAID BY CUSTOMER TO AUDIOEYE UNDER THE ORDER UNDER WHICH SUCH LIABILITY AROSE WITHIN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THIS SECTION 10 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER WILL NOT BRING OR ASSERT ANY CLAIM REGARDLESS OF FORM AGAINST ANY OF THE AUDIOEYE PARTIES MORE THAN TWELVE (12) MONTHS AFTER THE TERMINATION OF THIS AGREEMENT OR AFTER THE BASIS FOR THE CLAIM BECOMES KNOWN TO THE PARTY DESIRING TO ASSERT IT, WHICHEVER IS EARLIER.
11. Binding Arbitration
Disputes Through Binding Arbitration. The parties will attempt to settle all claims, allegations, actions, proceedings, and disputes related in any way to the Agreement (“Disputes”) through good faith discussions between the parties. Any and all Disputes that cannot be resolved between the parties shall be resolved through binding arbitration under this Section 11. Either party may refer the Dispute to arbitration. Each party agrees that it will assert Disputes in arbitration only in its individual capacity, and not as a representative or member of any purported class. Each party agrees that it will not participate in any class, mass, collective, consolidated, private attorney general or other representative arbitration proceeding. Each party agrees that the arbitrator(s) has no authority to arbitrate Disputes on a class-wide basis and shall not consolidate, combine, or jointly arbitrate Disputes of more than one person in a single arbitration. Any such arbitration with less than $250,000 claimed will be conducted in accordance with the rules of the American Arbitration Association (the “AAA Rules”), in Phoenix, Arizona, and presided over by a single arbitrator selected by the parties in accordance with AAA Rules. Any such arbitration with $250,000 or more claimed will be conducted in accordance with the AAA Rules, in Phoenix, Arizona, and if either party desires, presided over by three arbitrators selected by the parties in accordance with AAA Rules. All arbitrator candidates must be neutral as to each party and have substantial experience in the software industry. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force. Customer shall have the right to opt out of this agreement to arbitrate by providing written notice of its intention to do so to AudioEye within thirty (30) days of the execution of the contract.
Process. The parties will provide each other with all requested documents and records related to the dispute in a manner that will minimize the expense and inconvenience of both parties. Discovery will not include depositions or interrogatories in matters with one arbitrator, except as the arbitrator may expressly allow upon a showing of need. The parties and the arbitrator(s) will be guided in resolving discovery disputes and applying privilege rules by the Federal Rules of Civil Procedure. If disputes arise concerning discovery requests, the arbitrator(s) will have sole and complete discretion to resolve such disputes.
Authority of Arbitrator; Award. The parties agree that time of the essence principles will guide the hearing and that the arbitrator(s) will have the right and authority to issue monetary sanctions in the event of unreasonable delay. The arbitrator(s) will deliver a written opinion setting forth findings of fact and the rationale for the award within thirty (30) days following conclusion of the hearing. The award of the arbitrator(s), which may include legal and equitable relief, but which may not include punitive damages, will be final and binding upon the parties, and judgment may be entered upon it in accordance with applicable law in any court of competent jurisdiction. The Agreement will control if there is a conflict between the terms of the Agreement and the AAA Rules.
Allocation of Costs of Arbitration. Initially, each party will bear its own initial costs and expenses and will share equally in the initial fees of the arbitrator(s). In the event of any arbitration to enforce any payment obligations set forth in Section 4 (Fees; Late Payments; Payment Information; Other), the non-prevailing party shall pay all reasonable attorneys’ fees and other costs and expenses (including expert witness fees, costs of collection and any fees associated with the arbitrator(s)) of the prevailing party in such amount as determined by the arbitrator with respect to such enforcement. In the event of such an arbitration, the arbitrator(s) has sole discretion to determine which party is the “prevailing party” after taking into account the ruling compared to the parties’ respective positions and whether a position taken by the other party on material issues of the dispute was without substantial foundation. Otherwise, the arbitrator(s) will have no discretion to award any attorneys’ fees or other costs and expenses (including expert witness fees, costs of collection or any fees associated with the arbitrator(s)).
Exception to Arbitration. Notwithstanding anything to contrary herein, either party may seek a temporary restraining order, preliminary injunction or other provisional injunctive relief in the federal or state courts located in Phoenix, Arizona (U.S.A.) with respect to the violation or threatened violation of any Indemnified Intellectual Property Rights or any confidentiality obligations hereunder. Each party shall bear their own attorneys’ fees and other costs and expenses (including expert witness fees) in connection with such action.
12. Intellectual Property Indemnification with Respect to Enterprise Offerings
By Customer. Customer will indemnify, defend and hold harmless AudioEye and the AudioEye Parties at Customer’s expense from and against any and all claims, allegations, actions, proceedings, and suits brought by any third party (“Claims”), and all losses, damages, liabilities, judgments, settlements, penalties, fines, costs, and expenses (including reasonable attorneys’ fees and expenses of litigation) (“Liabilities”) incurred in connection with any such Claims, alleging that any Customer Content infringes the patents, copyrights or trademarks (the “Indemnified Intellectual Property Rights”) of such third party.
By AudioEye. AudioEye will indemnify, defend and hold harmless Customer (and its officers, directors, and employees) at AudioEye’s expense from and against any and all Claims, and all Liabilities incurred in connection with any such Claims, alleging that the use of an Enterprise Offering as permitted under the Agreement infringes the Indemnified Intellectual Property Rights of such third party. If Customer is, or AudioEye reasonably believes that Customer will become, subject to any such Claim, AudioEye may at its option and expense: (i) procure for Customer the right to continue using the applicable Enterprise Offering; (ii) replace or modify the Enterprise Offering to no longer infringe the Indemnified Intellectual Property Rights; or, if (i) and (ii) are not commercially reasonable, (iii) terminate the applicable Order (and provide Customer a pro-rata refund of any prepaid, but unused Fees relating to the Order (but only to the extent any services have not been provided related to such Fees)).
Limitations. Customer’s obligations under this Section 12 will not extend to any Claim, or any Liabilities incurred in connection with any such Claims, when the infringement was caused by the use of any Customer Content not otherwise permitted by the Agreement. AudioEye’s obligations under this Section 12 will not extend to any Claim, or any Liabilities incurred in connection with any such Claims, when the infringement was caused by: (i) the use of Customer Content as permitted by the Agreement; (ii) the use of an Offering or Technology not otherwise permitted by the Agreement; (iii) other software, hardware, systems, network, or technology not provided by AudioEye as part of the Enterprise Offerings; or (iv) modifications or changes to an Offering or Technology.
Procedure. Each party’s indemnification obligations above are subject in each instance to the indemnified party (a) promptly giving notice of the claim or liability to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnified party will have the right to approve any liability imposed on the indemnified party in connection with such settlement); and (c) providing to the indemnifying party all available information and reasonable assistance in connection with such Claim.
Limitation. This Section 12 sets forth AudioEye’s sole liability, and Customer’s sole remedy, regarding any Claim, or any Liabilities incurred in connection with any Claim. For the avoidance of doubt, AudioEye shall have no liability, and Customer no remedy, regarding any third party Claim, or any Liabilities incurred in connection with any Claim, with respect to any non-Enterprise Offering.
13. Changes to these Terms
AudioEye may make changes to these Terms from time to time. AudioEye will post these Terms incorporating such changes at https://www.audioeye.com/terms-of-service and will reference the date the Terms were last revised. Customer agrees to periodically visit the website and review the Terms for any changes. With respect to Subscription Offerings that automatically renew, the revised Terms shall be effective on the first date following the renewal of such Subscription Offering. Customer’s continued use of the Offerings on or after the date the revised Terms are posted constitutes acceptance by Customer of the revised Terms. Prior versions of AudioEye’s terms of service can be found at https://www.audioeye.com/terms-of-service/prior-terms-of-service.
Entire Agreement. The Agreement sets forth the entire understanding and agreement of the parties and supersedes all prior or contemporaneous communication and proposals (whether oral, written, or electronic) between the parties with respect to the subject matter hereof. Any terms that Customer may provide to AudioEye, including terms that Customer may require be accepted electronically through any vendor enrollment, login, invoice submission or other process relating to any Offering, are void, of no force or effect, and will not be enforceable against or otherwise bind AudioEye.
Conflicts. In the event of any conflict or inconsistency between these Terms and any Orders, the Order controls and governs over these Terms with respect to such conflict or inconsistency.
Governing Law, Jurisdiction and Venue. The Agreement will be governed by the laws of the State of Arizona, without regard to conflicts of law principles thereof. Subject to Section 11 (Binding Arbitration), each party will bring any action or proceeding arising from or relating to the Agreement exclusively in a federal or state court located in Phoenix, Arizona. Customer irrevocably submits to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by AudioEye.
Costs of Enforcement for Amounts Owed. In the event that either of the parties hereto (or any successor thereto) resorts to legal action in order to enforce payment of any amounts owed hereunder as a result of an arbitration, the non-prevailing party shall pay all reasonable attorneys’ fees and other costs and expenses (including expert witness fees and costs of collection) of the prevailing party with respect to such enforcement.
Publicity. AudioEye may reference Customer as a customer of the Offerings and use Customer’s name and logo, as applicable, in listings of customers of the Offerings appearing on AudioEye’s website and investor materials.
Notices. Unless otherwise specified in the Agreement, any notices required or allowed under the Agreement will be provided electronically as follows: (1) to Customer, by email to any address Customer provides in connection its use of the Offerings or (2) to AudioEye, (i) by email to email@example.com, provided, however, such notice will only be deemed received if Customer receives a non-automated email confirmation of receipt or (ii) by writing sent postage prepaid (x) by United States registered or certified mail, return receipt requested, (2) by nationally recognized overnight delivery service, or (3) by hand delivery to the other party at 5210 E Williams Cir Ste 750, Tucson, Arizona, 85711. Each party agrees that all notices and other communications may be provided electronically and satisfy any legal requirement that such communication be in writing. Either party may change its email or physical address for notice by giving the other party notice of the new address. Notices will be deemed received 24 hours after sending via email, unless the sending party is notified that the email address is invalid.
Force Majeure. Except for obligations to pay monies owed, neither party will be liable for delays, failure in performance, or interruption of any Offerings that result directly or indirectly from any cause or condition beyond such party’s reasonable control, including any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, pandemics or epidemics, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence that is beyond its reasonable control.
Waivers. The failure of either party to enforce any right or provision in the Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of each party. Except as expressly set forth in the Agreement, the exercise by either party of any of its rights or remedies under the Agreement will be without prejudice to its other rights or remedies under the Agreement or otherwise.
Severability. Each provision of the Agreement is severable. If any provision of the Agreement is or becomes invalid or unenforceable, that provision will be enforced to the maximum extent permissible and will not affect the validity and enforceability of the remaining provisions of the Agreement.
Survival. Any provision of the Agreement that, either by its terms or to give effect to its meaning, must survive, and such other provisions that expressly or by their nature are intended to survive termination shall survive the expiration or termination of the Agreement. Without limiting the foregoing, the following terms will survive the expiration or termination of the Agreement: Section 2 (Restrictions; Customer Obligations), Section 3 (Intellectual Property; Feedback), Section 4 (Fees; Late Payments; Payment Information; Other), Section 5 (Term and Termination; Temporary Suspension), Section 6 (Customer Content; Personal Datsa), Section 7 (Confidentiality), Section 8 (Customer Warranties), Section 9 (AudioEye Warranties With Respect to Enterprise Offerings), Section 10 (Disclaimer; Limitation of Liability), Section 11 (Binding Arbitration), Section 12 (Intellectual Property Indemnification with Respect to Enterprise Offerings), Section 13 (Changes to these Terms), Section 14 (General) and Section 15 (Definitions).
Assignment. Customer may not assign or otherwise transfer any Order or the Agreement or any of its rights or obligations thereunder (in whole or in part) without AudioEye’s prior written consent, provided, however, Customer may assign the Agreement and all of its rights and obligations thereunder in the event of a sale of all or substantially all of the assets of Customer or in connection with Customer’s merger with another entity so long as such acquiring entity agrees to assume all of Customer’s obligations under the Agreement. Any assignment in violation of the foregoing will be null and void. AudioEye shall have the right to assign any of its rights or delegate any of its responsibilities under the Agreement for any reason so long as AudioEye remains responsible for such responsibilities. AudioEye may use third-party providers to provide any portion of any Offering provided that AudioEye remains responsible for such portion.
Trade Sanctions and Export Control Compliance. The Offerings, and Customer’s use of them, are subject to laws, restrictions, and regulations of the United States and other jurisdictions that govern the import, export, and use of the Offerings. By using the Offerings, Customer agrees to comply with all such laws, restrictions, and regulations, and warrants that Customer is not prohibited from receiving the Offering by the laws of any jurisdiction.
Relationship of the Parties. Except as expressly provided in the Agreement, there shall be no third-party beneficiaries to the Agreement, other than the AudioEye Parties. The parties hereto are independent parties, not agents, employees, or employers of the other or joint ventures, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. AudioEye does not represent Customer or any affiliate or employee of Customer, and AudioEye does not provide legal advice.
Counterparts. Any Order and these Terms (if signed by the parties) may be signed in counterparts, all of which taken together constitute one single agreement between the parties.
Litigation. If Customer or any parent or affiliate receives any communication, or as a defendant is served with a complaint in any litigation (“Litigation”), alleging that Customer’s website using the Offerings is not compliant with or in conformance with the Americans with Disabilities Act, the Unruh Civil Rights Act, any law regarding accessibility, or any standard or level of Web Content Accessibility Guidelines (WCAG) (“Allegations”), Customer will promptly notify AudioEye as to the receipt of such communication or complaint. Such notification will be directed to https://www.audioeye.com/request-legal-support-services and will be accompanied by a copy of the communication or complaint. In connection with any Litigation, none of Customer or any parent or affiliate or employee of any such entity or person will refer to AudioEye or any Offering without AudioEye having an opportunity to review and comment upon such reference.
Other AudioEye Subscription Offerings. With respect to Other AudioEye Subscription Offerings, AudioEye will stand ready to provide such Other AudioEye Subscription Offerings up to the amounts referenced in any Order or an AudioEye Platform within each consecutive 12-month period within the term of such Other AudioEye Subscription Offerings beginning on the Term Start Date. Any unused service will expire at the end of each such consecutive 12-month period.
Limited Warranty. Certain Offerings may be eligible for the AudioEye Accessibility Warranty as specified at https://www.audioeye.com/accessibility-warranty (the “Limited Warranty”). AudioEye reserves the right to revise (or revoke) the terms of the Warranty at any time. Any revisions are effective when posted by AudioEye as part of the Warranty.
No Legal Advice. Customer agrees that AudioEye does not provide Customer with any legal advice with respect to any of its Offerings, and Customer is encouraged to engage legal counsel with respect to any matters.
Links to Third-Party Web Sites. Links on the AudioEye Website to third party websites or information are provided solely as a convenience. If Client uses such links and is taken to a third-party website, Client will be subject to the terms and policies of such third-party, if any. AudioEye is not responsible or liable for the availability or content of any such websites.
- “Account” means a digital account provided by AudioEye to Customer in connection with an Offering.
- “Agreement” means (i) these Terms, (ii) any Orders referencing these Terms or terms described in an AudioEye Platform, and (iii) any other exhibits, amendments, addendum or other agreements referenced in these Terms, an Order, described in an AudioEye Platform or otherwise signed by both parties.
- “AudioEye Parties” means (i) AudioEye, (ii) any of its affiliates, third-party suppliers, licensors and business partners, and (iii) each of their respective directors, officers, shareholders, employees, and agents.
- “AudioEye Website” means AudioEye’s website located at https://www.audioeye.com, including all subdomains therein, or such other website(s) as AudioEye may own or control from time to time.
- “Authorized Users” means individuals who are authorized to access an Account.
- “Customer” means the company, entity or other person that acquires the right to use an Offering.
- “Customer Content” means any data, information, or material (including any website, Customer Website, PDF, mobile application or other electronic files or data) that Customer makes available to AudioEye for use in connection with an Offering.
- “Customer Website” means a website subject to an Offering.
- “Data Processing Agreement” means AudioEye’s data processing agreement located at https://www.audioeye.com/dpa or such other data processing agreement or similar agreement governing the processing of Personal Data as the parties may otherwise agree to in writing.
- “Fees” mean all fees, costs and other amounts set forth in an Order or as described in an AudioEye Platform. “Fees” shall also include any fees, costs or other amounts for successive terms, automatic upgrades occurring during a term or price increases for automatically upgraded Offerings.
- “Non-Remediated Items” mean (i) any documents, spreadsheets, pdfs, or other non-website content or files accessible via the Authorized Domain, (ii) any videos or other multimedia files accessible via the Authorized Domain (including embedded videos or multimedia files from third-party platforms), (iii) any non-website applications, (iv) any domains linked from the Authorized Domain that is not an Authorized Domain (including Google Maps or Instagram), (v) any third-party content or widget including plug-ins, iframes or applications, (vi) any plug-ins, iframes or applications that use the flash format, or (vii) a java application that operates in a separate window.
- “Offering” means a service or software that AudioEye provides as referenced in an Order or an AudioEye Platform or in the agreement Customer has with an authorized Reseller. For the avoidance of doubt, AudioEye may, from time to time, make changes to the Offerings, with or without prior notice, including but not limited to updates, enhancements, additions and removals to the functionality of the Offerings. “Offering” also means an AudioEye Website.
- “Offering Description” means the functional description of an Offering provided either in an Order or a specific webpage referenced in an Order or an AudioEye Platform.
- “Order” means an (i) order form, statement of work or other document governing the terms of Customer’s use of an Offering signed by both parties or (ii) terms and payment information described in an AudioEye Platform.
- “Other AudioEye Subscription Offering” means an Offering or a component of an Offering that is referenced as an “Other AudioEye Subscription Offering” in an Order, on an AudioEye Platform or in an Offering Description.
- “Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Content, and (ii) such information is protected as personal data, personal information, or personally identifiable information under applicable Data Protection Laws (as defined in the Data Processing Agreement).
- “Platform” or “AudioEye Platform” means an AudioEye website, an Account or any other online method of acquiring the right to use an Offering directly from AudioEye.
- “Reseller” or “AudioEye Reseller” shall mean a third party who is authorized by AudioEye to resell its Offerings to other Customers.
- “Subscription Offering” means an Offering for which the rights to use was acquired via an AudioEye Platform or is otherwise labeled as a “Subscription Offering” in the applicable Order.
- “Technology” means any technology owned by, or licensed to, AudioEye by a third party and includes any Intellectual Property Rights of any kind throughout the world, any Installed Code, any Feedback that is incorporated into any of the foregoing, and any modifications, or extensions of any of the foregoing, whenever or wherever developed.
- “Term Start Date” shall mean the term start date referenced in the applicable Order or, if no such date is referenced, the last date on which both parties have signed the Order.
- “Trial Offering” means an Offering that AudioEye provides to Customer without any Fees.