These Terms of Service (“Terms”) were last updated on November 04, 2019.
AudioEye, Inc. (“AudioEye”, “us”, “our”, or “we”) offers various services (“Services”) and software (“Software” and, together with the Services, “Offerings”) to end users (“Users”) through this online platform (“Platform”).
These Terms are agreed to between AudioEye and you or, if you are accessing the Platform or using the Services on behalf of another individual, organization, or entity (“Entity”), that Entity (in either case, “you” or “your”).
These Terms are effective upon the date you first agree to these Terms by clicking “[I agree]” to these Terms or by accessing or using any Offering (the “Effective Date”). By accessing or using any Offering, or by clicking “[I agree]” to these Terms, you agree to enter into and be bound by these Terms. IF YOU DO NOT AGREE TO THESE GENERAL TERMS, OR DO NOT MEET ANY OF THE QUALIFICATIONS INCLUDED IN THESE TERMS, AUDIOEYE IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR ANY OFFERING AND YOU MUST NOT ACCESS OR USE THE PLATFORM OR ANY OFFERING.
If you are entering into these Terms on behalf of an Entity, by accessing or using any part of the Platform or any Offering, you represent and warrant that you have authority to bind that Entity to these Terms. If you do not have such authority, or you do not agree to be bound by these Terms, do not access or use any part of the Platform or any Offering on behalf of such Entity.
THESE TERMS CONTAIN AN ARBITRATION PROVISION, WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AND PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.
Capitalized terms used in these Terms have the definitions given in the context in which they are used. All other terms used herein have the plain English (US) meaning.
Your access to and use of any Offerings made publicly available by AudioEye is subject to your compliance with these Terms. If You have placed or later place an order through the Platform seeking to access and use of any Offering (an “Order”), your access to and use of that Offering is also subject to that Order.
All Orders will be governed by the terms of these Terms. AudioEye will have no obligation or responsibility with respect to any Order until accepted by AudioEye. Acceptance of any Order is in AudioEye’s sole discretion. Once accepted by AudioEye, each Order will constitute a part of these Terms. Only the terms of each Order accepted by AudioEye will constitute a part of this Agreement and any terms contained in any other document that you may provide to AudioEye, including any other terms provided in connection with any Order, are void, of no force or effect, and will not be enforceable against or otherwise bind AudioEye. If there is a conflict between these Terms and the terms of any Order, these Terms will control unless the Order expressly indicates that it is intended to supersede the provisions of these Terms.
Unless you have entered into a separate written agreement with AudioEye expressly providing otherwise, these Terms and each Order together comprise the entire agreement between you and AudioEye with respect to the Platform and each Offering made available to you by or on behalf of AudioEye and supersede all prior or contemporaneous communication and proposals (whether oral, written, or electronic) between you and AudioEye with respect to the Platform and each Offering.
If the Platform through which you are purchasing access to, accessing, or seeking to access an Offering is the [AudioEye Marketplace], then these Terms also apply to your access and use of the Platform.
If the Platform through which you are purchasing access to, accessing, seeking access to any Offering is a third party marketplace or platform, then the applicable terms and conditions provided by such third party (“Third Party Platform Terms”) apply to your access to and use of the Platform and these Terms apply only to your access to and use of the Offerings.
If there is a conflict between these Terms and any such Third Party Platform Terms, these Terms will control in all respects to your access to and use of any Offering and such Third Party Platform Terms will apply with respect to your access to and use of the Platform.
We reserve the right to make changes to these Terms or to the Platform or any Offering at any time, with or without prior notice, by making those modifications available to you or by providing notice to you as otherwise permitted herein. You are solely responsible for checking the Platform for any changes. Your continued use of the Platform and any Offering following any such changes to these Terms or to the Platform or any Offering constitutes your acceptance of those changes. If you do not agree with any changes, you may withhold your consent by not accessing the Platform or any Offering or by terminating these Terms as permitted herein. You agree that AudioEye and its subsidiaries and affiliates, including their respective directors, officers, members, employees and advisors, will not be liable to you or to any third party for any modification of these Terms or the Platform or any Offering, suspension of your access to the Platform or any Offering, or discontinuance of the Platform or any Offering.
We require that the Platform and the Offerings be accessed and used only by individuals who are not minors and who can legally enter into binding contracts with AudioEye under applicable Laws (typically persons 18 years of age or older, depending on the Laws applicable to you). By accessing or using the Platform or any Offering, you represent and warrant that you are not a minor and are legally permitted to enter into a binding contract, including these Terms, with AudioEye under applicable Law. We reserve the right to refuse to provide you access to the Platform or any Offering for any reason.
Use of the Software
Subject to your compliance with these Terms, during the Term AudioEye grants to you a non-exclusive, non-transferable limited license to (1) install the Software made available to you by or on behalf of AudioEye (in object code format only) solely on the number websites owned or controlled by you (“Websites”) specified in each Order and (2) operate the Software for your own lawful business purposes as necessary to access and make available the Services to those Websites.
Access to the Services
Subject to your compliance with these Terms, during the Term AudioEye will permit you to access and use (1) the Platform solely for your own lawful business purposes, and (2) the Services solely in connection with your permitted use of the Software.
The Platform, all Offerings, and the software, hardware, databases, and other technology used by or on behalf of AudioEye to operate and provide the Platform and Offerings (“Technology”), constitute valuable trade secrets of AudioEye and its suppliers and providers. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in these Terms; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, or create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance, or functionality of the Technology; (9) interfere with us, the operation or hosting of the Technology or any Offering; (10) frame or utilize framing techniques to enclose the Platform or any Content or create a link to the Platform accessing any Content; (11) use any circumvention tools, meta tags or any other “hidden text” utilizing any AudioEye Mark or URL; or (12) robotically or otherwise automatically harvest, scrape, extract, copy, access or collect any information or data from the Platform or any Offering.
You agree to purchase sufficient licenses for the Software to support your use and access to the Software on each Website on which you install the Software. The Software may contain functionality for limiting the operation of the Software to the number of Websites specified in each applicable Order or to the other limitations contained in these Terms. In addition, AudioEye reserves the right to monitor your use of the Offerings to ensure compliance with this Agreement. If AudioEye has reason to believe you are not in compliance with the rights granted under this Agreement, AudioEye reserves the right to take such action as is deemed necessary, including assessing additional charges if applicable or terminating your access to the applicable Offering without providing you with a refund.
Installation and Implementation
You are solely responsible for installation and implementation of all Offerings on and in connection with your Website(s). By installing or implementing any Offering, you acknowledge and agree that AudioEye is provided with control to apply changes to the rendered document object model (“DOM”).
Subject to compliance with these Terms, AudioEye will provide support for the Offerings as specified at https://www.audioeye.com/sla (the “SLA”). You may also visit the AudioEye Customer Help Center available at http://help.audioeye.com. AudioEye has no obligation to provide support for any Offering except as specified in this Section. All support will be provided in accordance with AudioEye’s then current support policies.
Except as expressly specified in these Terms, you are granted no licenses or other rights, whether by implication, estoppel, or otherwise, in or to the Platform or any Offering. AudioEye and its suppliers and licensors retain all right, title and interest in and to the Platform, all Offerings, and all other Technology, any and all additions, improvements, updates, upgrades, and modifications thereto and new versions thereof, and all intellectual property and proprietary rights, rights of publicity, rights of privacy, and other legal rights protecting data, information, or intangible property throughout the world, including any and all copyrights, trademarks, service marks, trade secrets, patents, moral rights, rights in datasets or databases, and contract rights (“Intellectual Property”) therein and related thereto. You receive no ownership interest in or to the Platform, any Offering, or any other Technology. You are not granted any license or other right to access or use the Technology itself apart from your access to and use of the Platform and other Offerings under the licenses and rights expressly granted in these Terms.
The AudioEye name and logo and all other trademarks appearing on the Platform or in any Offering (“AudioEye Marks”) are the property of AudioEye and its suppliers and licensors. You are not granted any license or other right to use any AudioEye Marks other than as part of your permitted use of and access to the Platform and Offerings.
Third Party Offerings
To the extent any product or service of any third party (a “Third Party Offering”) is provided in connection with or as part of any Offering, your access to and use of that Third Party Offering is subject to the terms of any third party agreement applicable to such Third Party Offering (which may include payment of additional fees) (a “Third-Party Agreement”). For any Third-Party Offering specifically indicated by AudioEye to be subject to the terms of a Third-Party Agreement, the terms of the applicable Third-Party Agreement will apply to the Third-Party Offering independent of the terms of this Agreement. All other Third-Party Offerings provided to you may be used only under these Terms. Unless otherwise stated in this Agreement, AudioEye has no control over, is not responsible for and does not provide support for, any Third Party Offering provided under a Third Party Agreement.
Account and Security
To attain access to and utilize certain aspects of the Platform and certain Offerings, you must register with us to open an account (“Account”). Approval of your request to establish an Account will be at the sole discretion of AudioEye. Each Account and the user identification and password for each Account, including any private keys or other codes associated with or used to access each Account (the “Account ID”) is personal in nature. Each Account is for your personal use and each Account ID may be used only by you alone. You will not distribute or transfer your Account or Account ID without our prior written permission, nor will you provide any third party with the right to access or use your Account or Account ID. You are solely responsible for all use of Platform and all Offerings accessed through your Account. All transactions completed through your Account or under your Account ID will be deemed to have been lawfully completed by you. As part of the Account registration process, you will submit your email address and select a password. You shall provide us with accurate, complete, and updated Account information. You agree that you will not (1) select or use the email address of another person with the intent to impersonate that person; (2) use a name subject to the rights of any other person without authorization; or (3) use an email address that AudioEye, in its sole discretion, deems inappropriate or offensive.
You will ensure the security and confidentiality of Your Account and Account ID. You will immediately notify us of any known or suspected unauthorized use(s) of your Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your Account ID. You understand and agree that you shall be liable for any activity performed by others using your Account or your Account ID. We are not responsible for any loss or damage arising from your failure to maintain the confidentiality of your Account ID.
We may immediately terminate your Account, or suspend your access to your Account, in our sole discretion and without notice for conduct that we believe is: (a) illegal, fraudulent, harassing or abusive; (b) a violation of these Terms or any other policies or guidelines posted by AudioEye; or (c) harmful to other users, third parties, or the business interests of AudioEye. Use of an Account for illegal, fraudulent or abusive purposes may be referred to law enforcement authorities without notice to you. If you file a claim against AudioEye, or a claim which in any way involves AudioEye, then we may terminate your Account. Upon any suspension or termination of your Account, (i) you may not establish a new Account for a period of one year (or such other duration as we may determine in our sole discretion) from the date of termination, (ii) we will have no obligation to notify any third parties regarding such termination, and (iii) you will be responsible for any damages that may result or arise out of termination of your Account.
Unless otherwise noted on the Platform or through any Offering, other than Your Content (as defined below), all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other content (“Content”) available through the Platform or any Offering (“AudioEye Content”) is owned by AudioEye, the Users providing that Content, or AudioEye’s other third party providers. All AudioEye Content is for informational purposes only and you are solely responsible for verifying the accuracy, completeness, and applicability of all AudioEye Content and for your use of any AudioEye Content. Any dated AudioEye Content is published as of its date only, and AudioEye does not undertake any obligation or responsibility to update, supplement or amend any such AudioEye Content. Subject to your compliance with these Terms, you may access the AudioEye Content solely for your own personal and internal business purposes in connection with your own use of the Platform and Services.
You will not, and will not permit any third party to: (1) alter, modify, reproduce, or create derivative works of any AudioEye Content; (2) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any AudioEye Content; or (3) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any AudioEye Content. If no specific restrictions are displayed, you may make copies of select portions of the AudioEye Content, provided that you use all copies only for your own personal and internal business purposes in accordance with the terms and conditions of these Terms.
Neither AudioEye, nor our other Users, suppliers or service providers have verified the accuracy of or will be responsible for any errors or omissions in any AudioEye Content. Without limiting the foregoing, AudioEye will not be held liable to you or any other third party for any AudioEye Content, including both AudioEye Content and Your Content, under applicable Law, including the Communications Decency Act, 47 U.S.C. § 230. Except as set forth in these Terms, you are granted no licenses or rights in or to any AudioEye Content or any Intellectual Property therein or related thereto.
You are solely responsible for all Content you to provide, upload, submit, or post to, or generate through access to or use of the Platform or Services (“Your Content”). You are solely responsible for all of Your Content, including the resolution of any disputes that may arise between you and any User or other Entity because of Your Content. By providing, uploading, submitting, posting, or generating Your Content, you grant us, our affiliates, and each of our respective vendors, suppliers, service providers, and business partners a non-exclusive, transferable, fully sublicensable, perpetual, irrevocable, royalty-free, fully paid up, worldwide license to use, copy, store, reproduce, modify, display, adapt, publish, translate, publicly perform, digitally perform, publicly display, and distribute Your Content and to prepare derivative works based on Your Content, or incorporate Your Content into other works, with or without consideration and with or without attribution or any duty of accounting to you. You understand that all of Your Content may be visible to, sent to, and viewed by other Users and you expressly waive any privacy rights you may otherwise have in Your Content. You agree to allow us, if we elect in our sole discretion, to provide Your Content to other Users.
You are solely responsible for Your Content. By providing, uploading, submitting, posting, or generating Your Content, you represent, warrant, and covenant that: (1) Your Content is accurate, complete, and current; (2) Your Content does not violate these Terms or any applicable federal, state, local, international, or other law, statute, rule, or regulation (“Law”) of any federal, national, state, provincial, local, or other government, governmental, regulatory, or administrative authority, agency, or commission or any court, tribunal, or judicial or arbitral body; (3) you have fully complied with all applicable Laws relating to Your Content; (4) Your Content will not contain any untrue statement of fact or omit to state a fact required to be stated or necessary to make such a statement not misleading in light of the circumstances under which it is made; (5) Your Content is not unlawful, harmful, threatening, abusive, harassing, libelous, defamatory, discriminatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, religiously, sexually, or similarly offensive, or otherwise objectionable; (6) Your Content does not encourage fraudulent or tortious activity or conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable Law or individual privacy rights; (7) Your Content does not constitute an infringement or misappropriation of the Intellectual Property or other rights of third party; (8) Your Content is not an advertisement or solicitation of funds, goods, or services; (9) Your Content is not false, misleading, incomplete or inaccurate; (10) Your Content could not be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement; and (11) you have all right, title, interest and consent in Your Content necessary to allow us to use Your Content as permitted under these Terms. You agree that you will promptly update Your Content in the event that Your Content is no longer in compliance with these Terms or if you discover that any of Your Content previously provided was not in compliance with these Terms when provided, uploaded, submitted, posted, or generated. AudioEye is not responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of Your Content.
You agree not to harass, advocate harassment, or to engage in any conduct that is abusive or harmful to any Entity. We reserve the right, but are not obligated, to investigate and/or prohibit any conduct, or remove or refuse to post any Content (including Your Content), that we deem in our sole discretion to be unlawful, harmful, in breach of these Terms, or otherwise offensive to you, the Platform, Users, our customers, our rights, or any Entity. We assume no liability for any action or inaction with respect to your conduct, communication, or Content. Additionally, we may disclose any Content or electronic communication of any kind: (1) to satisfy any Law or government request; (2) if such disclosure is necessary or appropriate to operate the Platform or any Offering; (3) to protect our rights or property, our Users and customers, you, or any other Entity; or (4) if, in our sole discretion, such Content or electronic communication should be referred to law enforcement or other government authorities.
Your Consent to be Contacted
YOU EXPRESSLY AUTHORIZE AUDIOEYE TO CONTACT YOU IN ANY LAWFUL MANNER AND FOR ANY LAWFUL PURPOSE, INCLUDING ACCOUNT SUPPORT OR TO INFORM YOU OF OR PROMOTE OR MARKET AUDIOEYE AND THIRD PARTY OFFERINGS WHICH AUDIOEYE BELIEVES MAY BE OF INTEREST TO YOU, AND YOU HEREBY UNAMBIGUOUSLY AGREE AND EXPRESSLY CONSENT TO RECEIVE SUCH EMAILS AND TELEPHONE CALLS.
YOU EXPRESSLY CONSENT TO BE CONTACTED AT THE TELEPHONE NUMBERS (INCLUDING MOBILE OR WIRELESS NUMBERS) AND EMAIL ADDRESSES YOU PROVIDE TO AUDIOEYE. YOU REPRESENT AND WARRANT THAT ANY MOBILE OR WIRELESS TELEPHONE NUMBER YOU PROVIDE BELONGS TO YOU AND IS ASSOCIATED WITH A MOBILE DEVICE IN YOUR POSSESSION. YOU HEREBY AGREE TO NOTIFY AUDIOEYE AT YOUR EARLIEST CONVENIENCE IF YOUR MOBILE OR WIRELESS TELEPHONE NUMBER CHANGES. SHOULD YOU HAVE ANY QUESTIONS ABOUT WHICH TELEPHONE NUMBERS OR EMAIL ADDRESSES YOU PROVIDED TO AUDIOEYE FOR THE ABOVE, PLEASE REVIEW YOUR ACCOUNT INFORMATION IN YOUR ACCOUNT DASHBOARD OR BY EMAILING MARKETPLACESUPPORT@AUDIOEYE.COM.
YOUR CONSENT TO THE TERMS OF THIS SECTION IS NOT REQUIRED, DIRECTLY OR INDIRECTLY, AS A CONDITION OF PURCHASING ANY OFFERING FROM AUDIOEYE. SHOULD YOU NOT WISH TO CONSENT TO BEING CONTACTED FOR EITHER OR BOTH ACCOUNT SUPPORT OR PROMOTIONAL PURPOSES, OR TO REVOKE A CONSENT PREVIOUSLY GIVEN, YOU AGREE TO NOTIFY US AS PERMITTED BY THESE TERMS OR THROUGH YOUR PERSONAL PREFERENCES VIA YOUR ACCOUNT DASHBOARD TO CLEARLY INFORM AUDIOEYE OF YOUR DESIRE TO REVOKE CONSENT.
THE PLATFORM AND ALL OFFERINGS AND CONTENT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS FOR YOUR USE SOLELY AS SPECIFIED HEREIN WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ALL STATUTORY AND OTHER IMPLIED WARRANTIES, CONDITIONS, AND REPRESENTATIONS ARE HEREBY DISCLAIMED, INCLUDING ALL WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR FROM AUDIOEYE’S CONDUCT IN COLLECTING, COMPILING, OR INTERPRETING ANY DATA OR INFORMATION. NEITHER WE NOR OUR THIRD PARTY SUPPLIERS MAKE ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE PLATFORM OR ANY OFFERINGS OR CONTENT. NEITHER WE NOR OUR THIRD PARTY SUPPLIERS WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE PLATFORM OR ANY OFFERINGS OR CONTENT AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE PLATFORM, OFFERINGS, OR CONTENT OR THE DELIVERY THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM, OFFERINGS, OR CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PLATFORM AND ALL OFFERINGS AND CONTENT REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AUDIOEYE, ITS AFFILIATES, THIRD PARTY SUPPLIERS, LICENSORS AND BUSINESS PARTNERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND AGENTS, (COLLECTIVELY, THE “AUDIOEYE PARTIES“) SHALL NOT BE LIABLE WITH RESPECT TO THE PLATFORM, ANY OFFERINGS OR CONTENT, OR ANY OTHER SUBJECT MATTER OF THESE TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR (1) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOST DATA, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, EVEN IF AUDIOEYE AND/OR ANY OF THE AUDIOEYE PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (2) THE USE OR THE INABILITY TO USE THE PLATFORM OR ANY OFFERING OR CONTENT, OR (3) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE ENTIRE LIABILITY OF AUDIOEYE OR ANY OF THE AUDIOEYE PARTIES TO YOU OR ANY THIRD PARTY EXCEED THE AMOUNT THAT YOU PAID TO AUDIOEYE OR ITS DESIGNEES FOR THE APPLICABLE OFFERINGS UNDER THESE TERMS DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF LOSS.
YOUR SOLE REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE PLATFORM OR ANY OFFERINGS IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE ANY USE OF THE PLATFORM AND THE OFFERINGS.
Some jurisdictions do not allow the limitation of liability, so the foregoing limitation may not apply to you. In such states or jurisdictions, the liability of AudioEye and its AudioEye Parties shall be limited to the fullest extent permitted by applicable law.
Links to Third Party Sites
The third-party links provided throughout the Platform will let you leave the Site. These links are provided as a courtesy only, and the sites they link to are not under our control in any manner whatsoever and are not otherwise covered by these Terms. Therefore, we are in no manner responsible for the contents of any such linked site or any link contained within a linked site, including any changes or updates to such sites. We are providing these links merely as a convenience, and the inclusion of any link does not in any way imply or express affiliation, endorsement or sponsorship by AudioEye of any linked site and/or any of its content therein.
The term of these Terms (“Term”) will begin on the Effective Date and will continue until terminated as set forth herein.
The term of each Order will continue for the initial duration stated on that Order. The term of each Order will thereafter renew for successive renewal terms as follows: (1) for Orders specifying a monthly term, the Order will renew for successive monthly terms unless you provide us with notice as specified herein of your intent not to renew such Order prior to the end of the then-current term; and (2) for Orders specifying annual or multi-year terms, the Order will renew for successive terms of the same duration or, at our sole discretion, for monthly, quarterly, or annual terms, unless you provide us with notice as specified herein of your intent not to renew such Order prior to the end of the then-current term.
The initial term applicable to any Order for an “add-on” or “upgrade” to an existing Offering will the then-remaining term for such Offering. Any such add-on or upgrade will thereafter become a part of the applicable Offering and any renewal of the term for such add-on or upgrade will be for the same duration as such Offering.
For any Offering provided on a trial basis, all access to and use of such Offering(s) may, at the end of the trial period, convert into a Fee-based Offering for the term identified in the Order applicable to such Offering, unless you provide us with notice as specified herein of your intent not to have such trial Offering convert prior to the end of the applicable trial period.
You may terminate your Account or any Order at any time by providing notice to us as specified herein. Termination of your Account will terminate these Terms and all Offerings then provided to you. Termination of any Order will only terminate such Order. Notwithstanding any such termination, you will continue to owe AudioEye all Fees due through the end of the then current term applicable to any Order(s) subject to such termination.
AudioEye may terminate these Terms or any Order at any time, in our sole discretion, upon any actual, threatened or suspected breach of these Terms or any Order. In such event, no notice shall be required by us to effectuate such termination.
AudioEye may also terminate any Order (or portion thereof) if access to an Offering under that Order is discontinued by AudioEye, either in general or through the Platform through which you placed your Order for such Offering. In the alternative, AudioEye may replace such Offering with any similar or comparable Offering then offered by AudioEye at the then-existing rate for such Offering. If AudioEye continues to provide you with access to any discontinued Offering, AudioEye may charge you additional fees associated with the continued provision of such discontinued Offering.
We also reserve the right to suspend or limit your access to the Platform or any Offering(s) for any reason or no reason in our sole discretion. During any such suspension, you may not access or use the Platform or any such Offering(s) or any related Content.
Upon any termination of an individual Order: (1) all rights to any Offerings subject to that Order will terminate; (2) you will cease all use of and access to all Offerings subject to such Order; (3) you will cease use of and delete any Content relating to the Offerings subject to such Order; (4) all Fees or other amounts incurred under such Order will become payable; and (5) we may, in our sole discretion, delete any of Your Content relating to the Offerings subject to such Order.
Upon any termination of these Terms: (a) all rights granted to you under these Terms and each Order will terminate; (b) you will cease all use of and access to your Account, the Platform, and all Offerings; (c) you will cease use of and delete all Content; (d) all Fees or other amounts incurred through your Account or which you have otherwise incurred under these Terms and each Order will become payable; and (e) we may, in our sole discretion, delete your Account and any of Your Content.
Following any termination of these Terms, you will continue to be bound by the terms hereof which, by their nature, survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
Fees and Payment; Taxes
You will pay AudioEye all fees and other amounts (“Fees”) specified in each Order when due.
AudioEye may increase the Fees applicable to any Offering prior to any renewal term of the Order applicable to the Offering. Any such increase shall become applicable upon such renewal.
Fees for any “add-on” or “upgrade” to an existing Offering will be charged at a pro-rated amount for the then-remaining term for such Offering. Any such Fee will thereafter become a part of the applicable Fee for such Offering for any renewal of the term for such Offering.
All Fees are due and payable in advance of the period to which such Fees. All Fees and Expenses are payable in the currency specified on each Order. Client will pay all Fees without withholding or deduction. All Fees are non-refundable once paid (including upon any termination or suspension). Client covenants and agrees that all billing and payment information provided by Client will be truthful and accurate. If Client specifies a credit or debit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Client authorizes AudioEye to charge the credit or debit card, or debit the bank account, provided to AudioEye for all Fees. You covenant and agree to maintain the right to use such credit card, debit card, or bank account for payment of all Fees and to provide AudioEye with any updates thereto as needed to enable payment of all Fees hereunder. If any such credit card, debit card, or bank account charges are rejected, dishonored, or reversed, you agree to promptly pay the applicable charges upon demand by AudioEye. A late payment charge of the lesser of 1.5% per month or the highest lawful rate may be applied to any past-due balances until paid.
AudioEye will collect all excise, VAT, taxes or any other fees as required by local regulations (“Taxes”). AudioEye will also distribute those Taxes.
Violation of These Terms by Others
If you believe a user of the Platform has violated these Terms, please contact customer service at 866-331-5324.
Your Representations and Warranties
You represent, warrant, and Covenant to AudioEye that : (1) you have the legal right and authority to enter into these Terms; (2) these Terms form a binding legal obligation on you; and (3) you have the legal right and authority to perform your obligations under these Terms and to grant the rights and licenses described in these Terms.
You further represent, warrant, and Covenant to AudioEye that all of the pages and content on your Website have been tested with modern web browsers and with each of the Offering’s features and that your Website functions properly and as intended.
You acknowledge that your use of the Platform and Offerings in compliance with any specific Law applicable to you, or other data or information you may provide or generate through the Platform or Offerings, including Your Content, is your sole responsibility. AudioEye is not responsible for enabling your compliance with any such Law or for your failure to comply. Regardless of the jurisdiction in which you use or access the Platform or any Offering, you represent, warrant and covenant that your use of and access to the Platform and the Offerings and Content, including Your Content, will comply with all applicable Laws and will not cause AudioEye itself to violate any applicable Law. The foregoing obligation includes compliance with all Laws that are applicable to the accessibility and transmission of Content on and through internet websites and mobile applications.
You agree to indemnify, defend, and hold harmless AudioEye and each AudioEye Party (collectively, the “Indemnified Parties“), at your expense, from and against any and all claims, allegations, actions, proceedings, and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs, and expenses (including reasonable attorneys’ fees and other dispute resolution expenses) (“Claims”) incurred by any Indemnified Party arising out of or relating to your (1) violation or breach of any of these Terms or any policy or guidelines referenced herein, (2) use or misuse of the Platform or any Offering or Content, (3) your violation of any Law or any rights of others in connection with your use of the Platform and Offerings or Content, (4) your use or disclosure of another person’s personal, financial or credit information or (5) infringement, violation or misappropriation of any Intellectual Property or the violation of any property or privacy right arising from any of Your Content or Website(s).
Certain Offerings may be eligible for the AudioEye Accessibility Warranty as specified at https://www.audioeye.com/accessibility-warranty (the “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.
Infringement of Your Copyrights
If you believe in good faith that your copyrighted work has been posted or made available on the Platform or through the Services without your authorization in a way that constitutes copyright infringement, please contact us at the address below so that we may investigate the situation and take any appropriate action. In order for us to investigate your claim of infringement, you must provide us with the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;
- A description of the copyrighted work that you believe has been infringed;
- A description of where the material that you claim is infringing is located or identified on the Platform;
- Your name, address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or applicable Law; and
- A statement by you, made under penalty of perjury, that the information submitted to us is accurate and that you are the owner of the copyright or authorized to act on behalf of the owner of the copyright.
The above information should be provided to our designated agent for notice of claims of copyright infringement at the following address:
Attn: Intellectual Property Manager
5210 E. Williams Circle, Ste 750
Tucson, AZ 85715
Please note that the above procedure is exclusively for notifying AudioEye and its affiliates it you believe in good faith that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the Digital Millennium Copyright Act of 1998.
Allegations that other Intellectual Property Rights may be infringed on the Platform or through the Services should be sent to email@example.com. AudioEye may, in its sole discretion, terminate the Accounts of those who are accused of infringing copyrights or other Intellectual Property.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES THROUGH MANDATORY ARBITRATION WITH A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Arbitration Terms. You agree that any dispute or claim arising out of or in any way relating to these Terms or the Platform or any Offerings (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration as specified in this Section.
Arbitration Procedures. Before commencing arbitration you must first present any claim or dispute to us in writing to allow us the opportunity to resolve the dispute. If the claim or dispute is not resolved within 60 days, you may request arbitration by serving a completed Commercial Demand for Arbitration Form on us and the American Arbitration Association (“AAA“). You can contact the AAA at 800-778-7879 or www.adr.org. The arbitration shall be conducted by the AAA in accordance with its Commercial Arbitration Rules, and, when deemed appropriate by the arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes, except as expressly set forth in these Terms. There shall be one arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes. The arbitrator shall be chosen by written mutual agreement of the parties. If, after 7 days, you and we are unable to agree upon an arbitrator, the AAA will appoint the arbitrator. The arbitrator shall apply the substantive law of the state of Arizona, without giving effect to its conflict of law provisions. All face-to-face proceedings shall take place in an agreed-upon location in Phoenix, Arizona.
Award. Arbitration is final and binding. In making any award, the arbitrator will be restricted by the “Limitation of Liability” provision in these Terms and will not have jurisdiction to make an award to any party to the arbitration contrary to the “Limitation of Liability” provision. You expressly agree that the rulings of the arbitrator, including any award, shall be binding, non-reviewable and non-appealable.
Confidentiality. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief.
Costs of Arbitration. The party requesting arbitration must pay the applicable AAA filing fee. Each party shall pay its own expenses of the arbitration, including the expense of its own counsel, witnesses, and presentation of evidence at the arbitration. If any party files a judicial or administrative action asserting a claim that is subject to arbitration and another party successfully stays such action or compels arbitration, the party filing that action must pay the other party’s costs and expenses incurred in seeking such stay or compelling arbitration, including reasonable attorneys’ fees.
Waiver of Jury and Class Action and Other Representative Proceeding.
THE PARTIES EXPRESSLY AGREE THAT THERE SHALL BE NO JURY TRIAL OR RIGHT TO A JURY TRIAL, OR RIGHT TO ANY OTHER PROCEEDING TO RESOLVE ANY DISPUTE IN ANY COURT. THE PARTIES ALSO EXPRESSLY AGREE THAT ANY DISPUTE IS PERSONAL TO THEM, AND ANY SUCH DISPUTE SHALL ONLY BE RESOLVED BY AN INDIVIDUAL ARBITRATION. NEITHER PARTY AGREES TO CLASS ARBITRATION OR ARBITRATION WHERE A PERSON BRINGS A DISPUTE AS A REPRESENTATIVE OF ANY OTHER PERSON OR PERSONS. NEITHER PARTY AGREES THAT A DISPUTE CAN BE BROUGHT AS A CLASS OR REPRESENTATIVE ACTION OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY OTHER PERSON OR PERSONS. THE PARTIES AGREE THAT A DISPUTE MAY ONLY BE RESOLVED THROUGH AN INDIVIDUAL ARBITRATION AND SHALL NOT BE BROUGHT AS A CLASS ARBITRATION, A CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
Governing Law and Venue
The interpretation of the rights and obligations of the parties under these Terms, and any dispute of any nature that might arise between you and AudioEye, will be governed by the Laws of the State of Arizona, USA, as such laws apply to contracts between Arizona residents performed entirely within Arizona, without regard to its conflict of laws principles.
Subject to the Dispute Resolution Section above, each party will bring any action or proceeding arising from or relating to these Terms exclusively in a federal or state court located in Phoenix, Arizona. You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by AudioEye. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms, and the parties hereby disclaim the application thereof.
All notices you provide to AudioEye under these Terms shall be in writing, in English. When you send a notice to AudioEye, such notice shall be deemed properly given when addressed to AudioEye’s address as stated on its website and (1) delivered by personal delivery, (2) delivered by overnight courier service with signature required, or (3) mailed by first class U.S. mail with postage paid, return receipt requested. In addition, you may provide us with notice of termination or non-renewal of these Terms or any Order by contacting our customer service at 866-331-5324.
You agree that we may send you any notice, communication, or other information in connection with the Platform or any Offering in electronic form to any e-mail address we have on file for you or, if the notice, communication, or other information applies to multiple Users, by posting such notice to the Platform or providing it through the Offerings. Notices, communications, or other information provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. Notices, communications, or other information given through the Platform or Offerings will be deemed given and received on the day you access the Platform or Offering containing such notice.
You agree to promptly notify us of any changes in your address or contact details. If AudioEye sends you any notice, communication, or other information but you do not receive it because the email address in our files file is incorrect, out-of-date, blocked by your service provider, or you are otherwise unable to receive the notice, communication, or other information, AudioEye will be deemed to have provided the notice, communication, or other information to you.
AudioEye will not be liable for delays, failure in performance or interruption of the Platform or any Offering which result directly or indirectly from any cause or condition beyond AudioEye’s reasonable control, including any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, 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 which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
The failure of AudioEye to enforce any right or provision in these Terms 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 AudioEye. Except as expressly set forth in these Terms, the exercise by either party of any of its rights or remedies under these Terms will be without prejudice to its other rights or remedies under these Terms or otherwise. If for any reason a court or arbitral tribunal, as applicable, of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect and enforceable. Neither these Terms nor any of your rights or obligations under these Terms may be assigned or transferred by you (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of AudioEye. Any assignment in violation of the foregoing will be null and void. AudioEye shall have the right to assign its rights or delegate any of its responsibilities under these Terms for any reason. AudioEye will use commercially reasonable efforts to provide you with notice of any such assignment or transfer. AudioEye may use third party providers to provide any portion of the Platform or any Offering. Except as expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. AudioEye may use third party providers to provide any portion of the Platform or any Offering. The AudioEye Parties shall be deemed third party beneficiaries to these Terms. 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. To the extent any ambiguity or inconsistency exists between an English version of any written document and a version in any other language, the English (as interpreted in the United States) version of such document shall prevail. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.”
Supplemental Terms Applicable to Specific Offerings
The following terms may also apply to the particular AudioEye Offerings you have purchased. To the extent you enter into an Order including one or more of the Offerings listed below, the terms listed as being applicable to each Offering below shall be deemed applicable to all of the Offering on such Order.
Web Accessibility Compliance Representations and Warranties
AudioEye continually monitors the relevant World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines (WCAG) to improve conformance with WCAG guidelines and to eradicate issues of accessibility that may impede access for persons with disabilities.
AudioEye periodically monitors current law and practice regarding digital accessibility compliance including, but not limited to the Americans with Disabilities Act (ADA) and other similar state and international laws.
AudioEye has and will continue to take steps necessary to help improve and maintain equal access to your Website(s).
AudioEye monitors your Website(s) and/or the platform hosting your Website(s) to take the steps necessary to improve conformance with WCAG standards.
AudioEye evaluates your Website(s) and/or the platform hosting your Website(s) on a periodic basis to improve conformance with WCAG standards.
AudioEye periodically reviews automated and manual test results to develop remediations to your Website(s) and/or the platform hosting your Website(s) to increase conformance with WCAG Success Criteria.
AudioEye provides support and training resources and hosts training seminars that promote accessibility best practices including, but not limited to, universal design, WCAG Success Criteria, video captioning, and document remediation.
To the greatest extent possible afforded to AudioEye by way of platform providers, AudioEye works with and/or takes measures to provide product stakeholders in charge of managing the platform hosting your Website(s) with information a) to improve the accessibility of the platform hosting your Website(s), the site template, and web components that comprise your Website(s), b) to incorporate accessibility into the design process, and c) to better ensure an optimal user experience for individuals with disabilities.
AudioEye supports a 24/7 Help Desk for site visitors, which enables them to report accessibility issues and grievances should they be encountered. AudioEye prioritizes the remediation of validated issues as submitted via the Help Desk.
AudioEye provides technical analysis and functional usability testing (manual testing) of your Website(s) and/or the platform hosting your Website(s), which is conducted by assistive technology (AT) testers.
Via proprietary and patented AudioEye Dynamic Remediation Technology, AudioEye remediates issues of accessibility identified within your Website(s) and/or the platform hosting your Website(s) and conducts retesting of issues to validate usability of remediated content and functionality.
AudioEye provides limited to full implementation of the AudioEye Toolbar, which provides web personalization tools permitting site visitors to customize their user experience to meet individual needs.
In addition to the Web Accessibility Compliance Representation and Warranties included with AudioEye Pro, AudioEye represents and warrants the following:
AudioEye conducts ongoing and continuous monitoring based on the usage analytics tracked by AudioEye. This always-on monitoring ensures that the pages being accessed by site visitors – the pertinent pages relative to the site visitor’s experience – are being regularly prioritized and evaluated for accessibility conformance.
AudioEye provides auditor representation documentation to assist in addressing digital accessibility legal threats or litigation pertaining to ADA non-compliance.
AudioEye provides full implementation of the AudioEye Toolbar, which provides web personalization tools permitting site visitors to customize their user experience to meet individual needs.
If you have any questions or concerns about these Terms or any issues raised in these Terms or on the Platform, your Account, or any Offering please contact our customer service at 866-331-5324.