Audigent
Terms & Conditions
These OAO Audigent Terms and Conditions (the “Terms”) govern, together with the terms and conditions of the Audigent Addendum (the “Addendum”) to the OAO Services Agreement (the “Services Agreement”), Company’s use of the Audigent Services. Capitalized terms used herein and not otherwise defined in these Terms shall have the meanings ascribed to them in the Addendum.
Use of the Audigent Services is subject to the following provisions:
1. Definitions. For purposes of these Terms, in addition to the definitions in the Addendum, the following definitions shall apply:
“Audience” means the users of Company’s Sites and consumers of Company’s content and social media.
“AuTAGGR™” means Audigent’s proprietary encrypted site tagger code which code launches Audigent’s javascript (or equivalent) when a user visits a Site or redirect page on which the AuTAGGR™ is deployed and which code interacts with the Platform to allow Audigent to perform the Audigent Services.
“Audigent Tags” means the cookie and exchange tags dropped on an end user.
“Audigent Tracking Tech” means, collectively, Audigent Tags and Audigent smart URLs or such other encrypted data tracking technology as OAO or Company may agree shall be deployed on Sites.
“Data” means Customer Data as well as data is collected through the use of the Audigent Tags and that may contain information that identifies an individual or relates to an identifiable individual or is treated as personal information under applicable law (“PII”); provided, however, that Audigent shall only collect, track and process Data that is expressly permitted by Company’s privacy policy, interest-based advertising policy, cookie policy or website or other application terms of use.
2. Responsibility for Fees for Services. Company’s use of the Audigent Services is at all times contingent upon Company’s payment of applicable fees pursuant to the Services Agreement and the Addendum. Company shall be solely responsible for any sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of Company’s use of the Audigent Services. Company shall also be liable to OAO for any fees and expenses incurred by OAO to a third party resulting from any breach by Company of the Addendum, these Terms or the use of the Audigent Services in violation of the terms prescribed by OAO, Audigent or the third party (including, without limitation, a violation of any on-line published policy of the third party).
3. Company Obligations.
A. Company shall implement AuTAGGR™ on the Sites and utilize Audigent Tags in order to enable Audigent to provide the Audigent Services. Company shall follow the instructions of Audigent to ensure accurate deployment of such AuTAGGR™ and Audigent Tags. In the event Audigent’s verification of any such implementation indicates problems that may affect the provision of the Audigent Services, Company agrees to work in good faith with OAO and Audigent to diagnose and resolve such problems in a timely manner. Company understands and agrees that the correct utilization of the Audigent Tags is necessary for the proper operation of the Audigent Services. To the extent that Company fails to so implement the Audigent Tags, neither OAO nor Audigent shall have any responsibility for the operation of the Audigent Services.
B. Company shall not place Audigent Tracking Tech on any page or location which is not a Site. Audigent shall have the right to require that Company remove any Audigent Tracking Tech from Sites which Audigent believes in good faith do not constitute inventory that would reasonably maximize advertising revenue or which would violate the terms of any third-party agreements subject to the same being known to Company.
C. Company shall notify OAO (which shall then notify Audigent) in writing of any restrictions or limitations, or changes thereto, including without limitation, advertiser, Site or category restrictions which may affect Audigent’s ability to perform the Audigent Services; provided, however, that Company understands and agrees that in no event will Audigent be required to terminate an ongoing campaign, due to Audigent’s receipt of such a notice except where such notice is in relation to a restriction previously notified or otherwise known to Audigent.
D. When using the Platform, Company will use reasonable efforts to ensure that all traffic is organic traffic generated directly or indirectly by Company and not artificial traffic (i.e. traffic not generated by click farms, bot or other similar paid sources which are used to boost site traffic statistics and which source do not represent real persons).
E. To the extent that Company is able, Company will provide OAO (which will provide Audigent) with social media “admin” logins (not to exceed six (6)) related to the Sites so that Audigent may verify its Data as well as “bank” the necessary Audience Data needed in order to perform the Audigent Services. Such logins shall be used solely for the purpose of Audigent providing the Audigent Services and shall not be used by Audigent in any manner which would be detrimental to Company’s interests.
F. Company shall observe Audigent’s guidelines for security in relation to the Platform including, but not limited to, maintaining the secrecy of logins and passwords.
G. Company shall have sole responsibility for the content of all communications and Data conveyed by or expressly on behalf of Company to users of the Sites and for obtaining all necessary consents under applicable laws and regulations in order to allow Audigent to deploy the Audigent Tracking Tech on the Sites.
H. Company agrees that Audigent shall have the right to use Company’s name and URLs for the sole purpose of marketing data and Audience segments to advertisers and performing the Audigent Services.
I. Company acknowledges and understands that in order to provide advertisers with advanced targeting capabilities through the Platform, Audigent may use cookie-based and cookieless ad serving technology for advanced ad targeting (such as serving ad series, re-targeting, and/or demographic or behavioral targeting) and/or categorize Company content into content categories (e.g., content channels, ad safe ratings).
J. Company represents and warrants that each of the Sites utilizing the Audigent Services contains a privacy policy that (i) discloses (x) the usage of third-party technology and (y) the data collection and usage resulting from the Audigent Services (it being understood, however, that this clause (i) will not be deemed to require those privacy policies to expressly identify Audigent or any Audigent Services unless otherwise required by law, rule or regulation) and (ii) complies with all applicable privacy laws, rules and regulations.
K. Company shall not, and shall not assist or knowingly permit any third party to (i) pass information to Audigent that Audigent could use or recognize as personally-identifiable information; (ii) misappropriate any part of the Audigent Services or copy, reproduce, modify, damage, disassemble, decompile, reverse engineer, or create derivative works from or in respect of the Audigent Services or any part thereof; (iii) modify the AuTAGGR™ or Audigent Tags; (iv) knowingly or negligently utilize the Audigent Tag to collect or transact data that is (x) deemed to be personally-identifiable information, or (y) from users known to be under the age of thirteen; (v) knowingly or negligently use any information provided by Audigent to re-identify individuals without obtaining such individual’s express opt-in consent; or (vi) knowingly attempt to link or merge third party data provided to Company by Audigent with personally identifiable information held by Company, without obtaining express opt-in consent from users. If Company breaches the obligations set forth in this section, then OAO shall have the right to immediately suspend or terminate Company’s use of the Audigent Services.
L. The Audigent Services shall be used or accessed only by OAO unless OAO grants Company access to the Platform through Audigent’s dashboard. Company acknowledges and agrees that if Company has direct access to the Platform, Company shall have direct liability to Audigent for such access and use and for any improper use thereof or violation of any of Audigent’s terms and conditions of such use.
M. Company represents and warrants that Company will not use the Audigent Services in any way or for any purpose that infringes or misappropriates any third party’s intellectual property or personal rights. Company further represents and warrants that any content or other material provided by Company in connection with the Audigent Services does not infringe any applicable law or third party right.
N. If the Audigent Services are terminated by OAO due to a breach by Company, in addition to any other remedies available to OAO under the Agreement or at law or in equity, Company is required to promptly pay (i.e. within thirty (30) days of its receipt of written notice from OAO), any past due monies owed to OAO pursuant to the Services Agreement.
4. Data. Company understands and acknowledges that Audigent will collect data through the use of the Audigent Tags for the purpose of performing the Audigent Services and on an aggregate basis to improve the Audigent Services and the Platform.
5. Ownership. Audigent retains all right, title and interest in and to the Audigent Services and any materials created, developed or provided by Audigent in connection with the Audigent Services, including but not limited to all intellectual property rights of whatever kind or nature related to the foregoing.
6. Confidentiality. The Audigent Services shall constitute, to the extent applicable, Confidential Information for purposes of the applicable provisions of the Services Agreement. Company shall not use the Audigent name or logo in general marketing materials relating to the Audigent Services without the express written approval of OAO and Audigent.
7. Indemnity. In addition to any other indemnity of Company in the Services Agreement or other document between OAO and Company, Company shall, at its expense, defend and hold harmless OAO and its members, officers, directors, employees and agents (collectively, the “Indemnitees”), against any and all claims directly or indirectly brought against the Indemnitees by any third party arising from any use of the Audigent Services by Company or its authorized representatives, which use is in violation of the obligations of Company pursuant to this Addendum or in a manner not prescribed by OAO or Audigent in regards to this Addendum or for any grossly negligent act or willful misconduct by Company or its representatives, agents, employees or contractors. Company shall pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by the Indemnitees for such defense; provided that: (a) OAO shall promptly notify Company of such claim (provided that the failure to promptly notify shall only relieve Company of its obligation to the extent it can demonstrate material prejudice from such failure), (b) Company shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that Company diligently undertakes such defense and that no settlement admitting liability on the part of the Indemnitees or limiting the Indemnitees rights hereunder may be made without the express written consent of the Indemnitees, and (c) OAO reasonably cooperates with Company at the Company’s cost and expense in connection therewith.
8. Disclaimer. Disclaimer AND LIMITATION OF LIABILITY: THE AUDIGENT SERVICES ARE PROVIDED “AS IS" AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NEITHER OAO NOR AUDIGENT MAKES ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT USE OF, ACCESS TO OR OPERATION OF THE AUDIGENT SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND THAT DATA TRANSMITTED USING THE AUDIGENT SERVICES WILL NOT BE IRRETRIEVABLY LOST. COMPANY SHALL BE SOLELY RESPONSIBLE FOR MAINTAINING BACK-UP COPIES OF ANY DATA PROVIDED BY COMPANY FOR USE IN OR IN CONJUNCTION WITH THE AUDIGENT SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL OAO OR AUDIGENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE OR ANTICIPATED PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE AUDIGENT SERVICES, HOWEVER CAUSED AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY), EVEN IF OAO, AUDIGENT OR COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER OAO NOR AUDIGENT SHALL HAVE ANY LIABILITY FOR ANY LOSS OF DATA OR FOR ANY LOSSES RESULTING FROM UNAUTHORIZED ACCESS TO THE AUDIGENT SERVICES, FOR ANY INFRINGEMENT CLAIMS ARISING OUT OF THE COMBINATION OF THE AUDIGENT SERVICES OR USE WITH OTHER HARDWARE, SOFTWARE OR OTHER ITEMS NOT PROVIDED BY AUDIGENT, FOR ANY UNAUTHORIZED MODIFICATION OF THE AUDIGENT SERVICES OR FOR ANY THIRD PARTY SERVICE PROVIDERS WHOSE SERVICES MAY BE USED IN CONJUNCTION WITH THE AUDIGENT SERVICES. IN NO EVENT WILL OAO’S LIABILITY FOR ANY REASON EXCEED THE AMOUNT PAID TO COMPANY FOR THE AUDIGENT SERVICES DURING THE THREE (3) MONTH PERIOD PRIOR TO THE TIME THE CLAIM AROSE. COMPANY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THE AUDIGENT SERVICES.
9. Termination; Modification.
A. Use of the Audigent Services may be terminated at any time by OAO or Audigent. In addition, OAO may terminate Company’s right to access and use the Audigent Services if Company breaches any of these Terms or the terms and conditions of the Addendum or the Services Agreement. Upon termination of the Audigent Services, Company shall promptly remove the AuTAGGR™ and any other Audigent Tags or java scripts from the Sites which utilize the Audigent Services.
B. OAO reserves the right to modify, amend and supplement (collectively, “Modifications”) these Terms at any time without prior notice to Company. Any Modifications will not apply retroactively but will become effective twenty (20) days after they are posted unless otherwise provided in the Modifications. Company's continued use of the Audigent Services after such period shall constitute Company's acceptance of such Modifications.
10 Payments. Payments to Company by OAO in connection with the Audigent Services will be issued on the later of a NET 90 basis or approximately ten (10) business days after OAO receives payment from Audigent, unless a longer payment period is specified in the Services Agreement (including any other addendum or exhibit thereto), in which event the longer payment period shall control. In the event Company owes OAO any fees for Audigent Services or any amounts under the Addendum or Services Agreement, OAO shall be entitled to offset payments due Company against such fees and other amounts as may be due OAO. OAO shall not have any liability to Company in the event OAO is unable to collect revenues due from Audigent nor shall OAO be required to institute any legal proceedings to collect such revenues.
Last Updated: June 9, 2021