1. Description of Services.
We make available to you on the PA Site a wide variety of resources, including, but not limited to, software applications (“Software”), performance reports and other media properties (“Reports”), as well as additional information, content and tools that we hope may be of interest to you. The Reports and such additional information, content and tools will be collectively referred to in this Agreement as “PA Content”. Unless explicitly stated otherwise, any new features or functionalities made available on the PA Site are subject to this Agreement.
If you want to access or use certain information, content, or tools on the PA Site you may be required to register for a Particular Audience account. In registering, you agree to provide accurate, current, and complete information, and to keep it up to date at all times. Please do not choose as a login name an email address that is indecent or offensive, or otherwise violates this Agreement or any applicable laws or regulations.
You are responsible for safeguarding the password that you use to access the PA Site and you agree not to disclose it to any third party. You hereby take responsibility for all actions taken under your account by you or any third parties. You will notify Particular Audience immediately of any unauthorized use of your account.
Particular Audience hereby grants you a limited, revocable, non-exclusive, non-sublicensable license to use, copy, and distribute the Reports, subject to the following restrictions: (a) you must insert in a clear and conspicuous way in any document incorporating the Reports the following proprietary notice: “Source: Particular Audience. www.particularaudience.com“; (b) you must not sell or trade the Reports, or charge any amount to make the Reports available to third parties as part of a service; (c) you must not manipulate or modify the Reports to state or suggest different or additional measurement results from those presented by Particular Audience, including, but not limited to, information in the Reports or the way such information is presented; (d) you must not aggregate or combine information related to different Particular Audience Profiles; (e) you must not quantitatively aggregate or combine information in the Reports with information derived from other sources (but offering a comparison of the information in the Reports with information derived from other sources is permissible); (f) you must not misrepresent your site traffic or usage in connection with the Services; (g) you must not use the information in the Reports in any way that competes with Particular Audience; and (h) if you provide the information in the Reports directly to any third party (rather than by having them access the information through the PA Site), you will ensure that each such third party agrees to be bound by and does then in fact comply with the foregoing restrictions. You will not ( i ) use the Services to track or collect personally identifiable information of Internet users, or (ii) provide personally identifiable information of Internet users to Particular Audience.
Except as expressly provided under this Section, you will not use, copy, or distribute the Reports, any information in the Reports, or any content on the PA Site.
4. What You Must NOT Do.
You agree to use the PA Site and the Services only in accordance with the terms and conditions of this Agreement, as well as any and all applicable laws and regulations. While using the Services you will not ( i ) engage in any illegal acts or acts which are offensive to others, or (ii) violate any personal or property rights of any third party, including, but not limited to, intellectual property rights. Furthermore, you will not:
(a) Copy, modify, adapt, translate, or otherwise create derivative works of the Services or the Software, or (except as explicitly permitted herein) the PA Content;
(b) Reverse engineer, de-compile, disassemble, or otherwise attempt to discover any systems used by Particular Audience;
(c) Rent, lease, sell, assign, or otherwise transfer rights in or to the Services or the Software;
(d) Post, transmit, or introduce any device, software, or routine that interferes or attempts to interfere with the operation of the Services or the Software.
(e) Circumvent, disable, or otherwise interfere with security-related features of Services or the Software, or features that prevent or restrict use or copying of any PA Content;
(f) Upload, stream, email, or otherwise transmit ( i ) any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, “pyramid” or similar schemes, or any other form of solicitation or (ii) any viruses or other computer code that could interrupt, destroy, or limit the functionality of the Services or the Software, infect or damage another user’s computer, or interfere with the access of any other user to the Services or the Software;
(g) Delete, or in any manner alter, the copyright, trademark, or other proprietary rights notices appearing on the PA Site and any PA Content;
(h) Represent that Particular Audience endorses or supports your site or content;
( i ) Obtain any information or materials relating to the Services or the PA Site or through any means not intentionally made available by Particular Audience to you, or attempt to gain unauthorized access to the Services or the PA Site, or any technology, computer systems, or networks associated with the Services or the PA Site, or attempt to index, search, or crawl the Services or the PA Site with any automated process or other similar mechanism.
Particular Audience may terminate or suspend your Particular Audience account and your access at any time without notice including without limitation in response to a suspected violation of any of the foregoing prohibitions.
5. Property Rights.
The PA Site, the Services, the Software and the PA Content are protected by copyright, trademark, and other laws of Australia and foreign countries. All right, title, and interest, including, but not limited to, intellectual property rights, in and to the PA Site, the Services, the Software and the PA Content, are and will remain the exclusive property of Particular Audience and its licensors. Except as expressly permitted in this Agreement, you will not reproduce, modify, or prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the PA Site, the Services, the Software or the PA Content.
You agree to defend (if Particular Audience so requests), indemnify, and hold Particular Audience, its subsidiaries, and affiliates, and their respective directors, officers, shareholders, and employees, harmless from any expenses, costs, judgments, damages, loss, liability, claim, or demand (including but not limited to any reasonable attorneys’ fees) made by any third party arising out of any breach by you (or a user of your account) of any terms or conditions of this Agreement.
7. Warranty Disclaimer.
THE SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PARTICULAR AUDIENCE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT. PARTICULAR AUDIENCE MAKES NO WARRANTY THAT THE SERVICES, THE PA SITE, OR THE PA CONTENT WILL (1) MEET YOUR REQUIREMENTS, (2) BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, OR (3) NOT CAUSE ANY LATENCY OR PROCESSING DELAYS. PARTICULAR AUDIENCE IS UNDER NO OBLIGATION TO KEEP THE SITE UP AND RUNNING FOR ANY PERIOD OF TIME. PARTICULAR AUDIENCE MAKES NO WARRANTY REGARDING THE QUALITY OF THE SERVICES, THE PA SITE, OR THE PA CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, THE PA SITE, OR THE PA CONTENT. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PARTICULAR AUDIENCE OR THROUGH THE SERVICES, THE PA SITE, OR THE PA CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. UNDER NO CIRCUMSTANCES WILL PARTICULAR AUDIENCE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY OR DEATH, OR LATENCY OR PROCESSING DELAY RESULTING FROM THE USE OF THE SERVICES, THE PA SITE, OR THE PA CONTENT OR FROM THE CONDUCT OF YOU OR ANY USER OF THE SERVICES, WHETHER OFFLINE OR ONLINE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED A BASIS FOR ENABLING PARTICULAR AUDIENCE TO OFFER THE SERVICES TO YOU WITHOUT CHARGE. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.
Unless otherwise terminated as set forth herein, this Agreement will remain in full force and effect while you use the Services. You may terminate this Agreement at any time by contacting us with your complete account information and explicit request to terminate, which emails are handled at Particular Audience’s convenience. Particular Audience may terminate or suspend your access to the Services or terminate this Agreement at any time, for any reason or no reason, with or without notice, and without any liability to you. Upon termination, all licenses and other rights granted to you under this Agreement will immediately cease. Particular Audience will not be liable to you or any third party for termination of this Agreement or any termination or suspension of your use of the Services. Upon any termination or suspension, any information that you have submitted to the PA Site may no longer be accessed by you. Notwithstanding the above, Sections 5, 6, 7, 11 and 12 will survive termination of this Agreement.
9. Modification of PA Site and Services.
Particular Audience reserves the right, in its sole discretion, to modify or discontinue the PA Site and Services without notice.
10. Export Laws.
The Software is further subject to Australian export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of Australian export laws. By downloading or using the Software, you represent and warrant that such download or use is not in violation of any such law.
11. Limitation of Liability.
IN NO EVENT WILL PARTICULAR AUDIENCE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF PARTICULAR AUDIENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS FORMED A BASIS FOR ENABLING PARTICULAR AUDIENCE TO OFFER THE SERVICES TO YOU WITHOUT CHARGE. THIS PARAGRAPH WILL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PARTICULAR AUDIENCE’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO ONE HUNDRED AUSTRALIAN DOLLARS (AU$100.00).
This Agreement constitutes the entire Agreement between the parties with respect to the use of the Services and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral between Particular Audience and you (except for any Particular Audience – Terms of Service Agreement to which you may be a party). Any waiver by Particular Audience of any violation of any provision of this Agreement will not be deemed to waive any further or future violation of the same or any other provision. If any part or provision of this Agreement is held to be unenforceable for any purpose, including but not limited to public policy grounds, then you and Partcular Audience agree that the remainder of the Agreement will be fully enforceable as if the unenforceable part or provision never existed. You and Particular Audience agree that there are no third party beneficiaries of any promises, obligations or representations made by Particular Audience. You may not assign any rights granted to you or delegate any of your duties hereunder and any attempt to do so is void and of no effect. Particular Audience may assign its rights and delegate its duties under this Agreement in their entirety in connection with a merger, reorganization, or sale of all, or substantially all, of its assets relating to this Agreement. Nothing in this Agreement will constitute a partnership or joint venture between you and Particular Audience. THIS AGREEMENT AND ANY DISPUTE RELATING TO THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF NEW SOUTH WALES AND THE LAWS OF AUSTRALIA. YOU AND PARTICULAR AUDIENCE AGREE AND CONSENT THAT JURISDICTION, PROPER VENUE, AND THE MOST CONVENIENT FORUMS FOR ALL CLAIMS, ACTIONS, AND PROCEEDINGS OF ANY KIND RELATING TO PARTICULAR AUDIENCE OR THE MATTERS IN THIS AGREEMENT WILL BE EXCLUSIVELY IN COURTS LOCATED IN SYDNEY, NSW.
All notices or other communications to Particular Audience from you will be deemed given when received by prepaid first class mail or courier, hand delivery, electronic mail, at the address below:
Effective Date: 2017/09/13