PARTICULAR AUDIENCE - TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS are made and entered into by and between ANAMANTIC PTY (ABN 64 619 588 153) trading as Particular Audience whose registered office is at 3/85 William St, Darlinghurst, NSW, 2010, Sydney (“Particular Audience”) and the entity signing an Order Form with Particular Audience (“Customer”).  These terms and conditions, along with the Order Form entered into by and between the parties, constitutes the agreement between the parties (“Agreement”).  Customer may be a direct customer (“Customer”) or an agency of the Customer (“Agency”).

1.	Services
1.1.	Services. Particular Audience shall provide the following services (“Services”) to Customer: (a) provide a tag line of JavaScript (“Tag”) that Customer shall place on its websites identified on the Order Form (each, a “Website” and collectively, the “Websites”) at locations identified (e.g., Website header, tag manager or other mutually agreed upon area), (b) utilize Customer’s Content and Event Data (collectively, the “Content”), and (c) utilize the Tag to inspect the Document Object Model (“DOM”) and cookies from each Website, add new elements to the DOM to store the Content, add cookies to facilitate tracking across domains, and store deterministic information such as IP addresses and device IDs, all in order to track a website visitor’s behavior and compute similarity to other customers both recent and historic.
1.2.	Dashboard. In connection with provision of the Services, Particular Audience may grant the Customer access to a dashboard where Customer may access reporting provided hereunder (“Dashboard”). Customer shall safeguard any username and password associated with its account and shall be responsible for all activity under its account.
1.3.	Right to Access and Use.  In consideration of Customer’s payment of the applicable Fees and subject to the terms and conditions of this Agreement, Particular Audience hereby grants Customer a limited, non-exclusive, non-transferable, revocable right, during the Term, to access and use the Services and the Dashboard. 
1.4.	Restrictions. Except as expressly permitted herein, Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services, the Tag, the Dashboard and any technology or software used by Particular Audience to provide the Services, including without limitation, underlying technology, trade secrets, data, content or information (collectively, including the Services, “Particular Audience Technology”); (ii) modify, adapt, translate or make derivative works based upon the Particular Audience Technology (or any portion thereof), (iii) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Particular Audience Technology (or any portion thereof), (iv) reproduce any portion of the Particular Audience Technology, (v) send or store infringing, or otherwise unlawful or tortious material, including material violative of third party intellectual property or privacy rights; (vi) send or store material containing software viruses, worms, Trojan horses, time bombs, cancelbots or other harmful computer code, files, scripts, agents, programs or programming routines (collectively, “Harmful Code”) to, on or through the Particular Audience Technology (or any portion thereof), (vii) interfere with or disrupt the integrity or performance of the Particular Audience Technology (or any portion thereof), including without limitation, the Services, the Tag, the Dashboard or the data contained therein, (viii) access the Vendor Technology (or any portion thereof) by any means other than through the interface that is provided by Particular Audience for use in accessing the foregoing or in order to build a product or service which competes with the Services, (ix) attempt to gain unauthorized access to the Particular Audience Technology (or any portion thereof) or its related systems or networks or misrepresent its identity, use or attempt to use any unauthorized identification (including without limitation use of any third party logo, name or other identifier), (x) use the Particular Audience Technology (or any portion thereof) for any purpose or in any manner that is unlawful or prohibited by this Agreement, (xi) publicly disseminate information or analysis regarding the performance of the Particular Audience Technology (or any portion thereof), or (xii) permit or authorize any party to do any of the foregoing.
1.5.	Provision of Services.  Particular Audience shall provide the Services in accordance with the features, pricing terms and other metrics as set forth in this Agreement and on the Order Form. Particular Audience and its licensors reserve all rights not expressly granted hereunder, including the right, in its sole discretion to continually evolve the Services and all related technologies, to upgrade, modify or discontinue, temporarily or permanently, all or a part of the Services. In the event that Particular Audience exercises any such right and Customer’s access or use of the Services is materially restricted, Particular Audience will provide notice of the actions taken as soon as practicable.
2.	Customer’s Responsibilities.  
2.1.	Use of the Service. Customer is responsible for all activity occurring under its account and shall (i) abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services, including those related to advertising, data privacy, international communications and the transmission of technical or personal data, and all compulsory industry self-regulations (“Applicable Laws”), (ii) not use the Services in a manner that could reasonably be expected to damage the Services.  Customer shall notify Particular Audience immediately of any unauthorized use of any password or account or any other known or suspected breach of security and use reasonable efforts to stop immediately any such unauthorized use within its reasonable control.  In the event Customer is an Agency, Agency shall ensure its Customers’ are in compliance with the foregoing.
2.2.	Privacy Policy.  Customer will maintain and abide by a privacy policy that is consistent with Applicable Laws.  At a minimum, Customer’s privacy policy must (i) notify users in plain English what information is being collected from or about the users; (ii) how such information is to be used once collected, including its use to select advertisements that are more likely to be of interest to the user; (iii) disclose what technologies, if any, are used to gather information about users, including but not limited to cookies, web beacons, browser cache technologies, locally stored objects (LSOs), statistical identifiers, clear gifs, embedded scripts and /or similar means; (iv)  explain how, and for what purpose, any data collected may be shared with and/or used by third parties, including Particular Audience; (v) contain a statement to the effect that third parties may also gather user data and that Customer’s privacy policy may not describe the privacy practices of such third parties and (vi) include a conspicuously posted mechanism by which users may opt out of the collection of data regarding their internet usage.  There must be a link to this privacy policy on each webpage where the Tag is located and/or where data gathering occurs.  In the event Customer is an Agency, Agency shall ensure its Customers are in compliance with the foregoing.
3.	Customer Data .
3.1.	Customer Data. Data about website users collected from the Tag or otherwise provided by Customer to Particular Audience (“Customer Data”) shall belong exclusively to Customer, but Customer Data collected by the Tag may not be used by either party except by Particular Audience to provide the Services.
3.2.	Licences. Customer grants to Particular Audience a limited, non-exclusive, non-transferable (only as permitted by an assignment of the Agreement permitted under Section 12.6) worldwide, perpetual, licence to reproduce, distribute, use and prepare derivatives from Customer Data for the sole purpose of providing the Services. For avoidance of doubt, once Customer removes the Tag from the Websites, no further Customer Data will be collected.  Particular Audience may de-identify and aggregate Customer Data and use it for (i) internal purposes such as improving the Services, and (ii) creating and distributing to third parties benchmark and other reports (e.g., performance statistics for the Services, vertical level insights).
3.3.	Data Protection. Each party shall, in connection with the exercise of its rights and the performance of its obligations under the Agreement, comply with federal Privacy Act 1988 (Cth) (Privacy Act) and any other analogous legislation in any jurisdiction (“Data Protection Law”). in which personal data (as defined under EU and Australian Applicable Law) (“Personal Data”) and personally Identifiable Information  (“Personally Identifiable Information”) is processed (collectively, “Data Protection Law”). Particular Audience represents and warrants that the Tags on the Websites shall not collect Personally Identifiable Information, but it does collect IP addresses, device IDs and relies on the following Customer warranty to make the foregoing Particular Audience warranty. Particular Audience, as data Processor, processes data on behalf of the Customer, and shall:
a) only process such personal data in accordance with the Agreement and the instructions of the Customer;
b) maintain technical and organisational security measures sufficient to ensure its own compliance with its obligations under Data Protection Law;
c) allow the other party to verify its compliance with the said requirements on reasonable notice and provide the other party with evidence of its compliance with the said requirements; and
d) notify the other party immediately in the event of any data security breach, actual or suspected, and provide the other party with such co-operation and assistance as may be required to mitigate against the effects of any such breach.
Particular Audience shall not transmit any personal data received from the Customer pursuant to the Agreement outside the European Economic Area, save where strictly necessary for the performance of its obligations under the Agreement, and where such transmission complies with the Data Protection Laws.
4.	Intellectual Property Ownership.  
Particular Audience alone (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights (e.g., patent, copyright, trade secret), in and to: (i) the Particular Audience name, logo, and any of the product names associated with the Services, all of which are trademarks of Particular Audience (“Particular Audience Marks”), and no right or license is granted to use the Particular Audience Marks, and (ii) the Particular Audience Technology (exclusive of the Customer Data or Content) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer, Customer or any other party relating to the Services. This is an agreement for the provision of Services and not an agreement for sale or a license to any software. Customer acknowledges that it is obtaining only a limited right to access and use the Particular Audience Technology and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.  Particular Audience acknowledges that vis-à-vis Particular Audience, Agency and/or Customer alone (and its licensors, where applicable) shall own all right, title and interest in and to the Customer Data, the Websites (exclusive of the Tag), the Agency’s and Customer name, logo, and any of the product names associated with the Websites, all of which are trademarks of Agency and/or Customer (“Customer Marks”), and no right or license is granted to use the Customer Marks and Agency’s or Customer’s intellectual property rights therein, and no right or license is granted to Particular Audience, except as specifically provided.
5.	Fees and Payment.
Customer shall pay Particular Audience any fees (“Fees”) set forth in the Order Form as set forth in the Order Form, or, if not set forth therein, within thirty (30) days after receipt of invoice by wire transfer or ACH, as specified in writing by Particular Audience.  All invoices and payments under this Agreement shall be made in AUD dollars. Except for taxes on Particular Audience’s income, Customer is responsible for paying all applicable sales, use or other taxes or duties, tariffs, etc. applicable to the Services provided.  If Customer is an Agency, Fees shall be due regardless of whether Agency receives payments from Customers. In addition, Fees shall be due regardless of whether or not targeting criteria results in the targeting of Content to website visitors.  Particular Audience reserves its right to suspend the Services, if any payment is delayed.  Any payment not received from Customer by the due date may accrue, at Particular Audience’s discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.  Particular Audience also reserves the right to assess other reasonable costs of collection to Customer, including reasonable attorney’s fees and costs.  
6.	Confidential Information
6.1.	Definition.  "Confidential Information" means:  (i) Particular Audience Technology; and (ii) any business or technical information of Particular Audience, Agency or Customer, including but not limited to any information relating to Particular Audience’s, Agency’s or Customer’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how.
6.2.	Exclusions.  Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (v) is disclosed with the prior written approval of the disclosing party.
6.3.	Use and Disclosure Restrictions.  During the term of this Agreement and thereafter, neither party will use the other party's Confidential Information except as permitted herein, and neither party will disclose such Confidential Information to any third party except to employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants); provided, however, that Particular Audience may use and disclose such Confidential Information as may be necessary to perform the Services. However, each party may disclose Confidential Information of the other party:  (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (ii) on a confidential basis to legal or financial advisors.
7.	Term and Termination
7.1.	Term.  This Agreement shall commence on the Start Date identified in the Order Form and shall, unless earlier terminated as provided herein, continue for the duration of the term set out on the Order Form (“Initial Term”).  Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one year periods (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides the other party with written notice of its intention not to renew at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term.
7.2.	Termination. Each party may terminate this Agreement for a material breach of the other Party that, if capable of cure, remains uncured for a period of thirty (30) days after written notice thereof. In addition, either party may terminate this Agreement upon written notice if the other party (i) ceases to do business in the normal course, (ii) becomes or is declared insolvent or bankrupt, (iii) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days, (iv) makes an assignment for the benefit of creditors, or (v) any analogous circumstance under laws outside of the U.S.
7.3.	Effect of Termination.  Upon any termination of this Agreement, (a) all rights and licenses granted to Customer hereunder shall terminate and Customer shall immediately cease all access to and use of the Services, the Tag, the Particular Audience Technology and any Particular Audience Confidential Information, and [(b) Particular Audience will discontinue use of any Customer Data and return such Customer Data to Customer to the extent such Customer Data is maintained in a state that is discrete or distinct from other data in Particular Audience’s possession or control.]
7.4.	Return of Confidential Information.  Each party shall promptly return or, if requested, destroy, all Confidential Information of the other party then in its possession and control, and provide the other party with an officer's written certification, certifying to compliance with the foregoing
7.5.	Nonexclusive Remedy.  Termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
7.6.	Survival.  The rights and obligations of the parties contained in Sections 1, 2, 3.3, 4, 6 and all unpaid payment obligations as of the date of expiration or termination will survive the expiration or termination of this Agreement.
8.	Representations & Warranties
Each party represents and warrants to the other party that: (i) it has the authority to enter into this Agreement, grant the licenses, perform the services herein, (ii) it has secured all licenses and permissions necessary to provide such licenses, and (c) it will comply with all Applicable Laws in performance of its obligations hereunder.  In addition, Customer represents and warrants to Particular Audience that: (a) the Content and the Websites, including all content thereon and the operation thereof, complies with all Applicable Laws; (b) it is fully authorized to publish and to authorize Particular Audience to publish on the Content on its behalf.
9.	Indemnification.  
9.1.	Customer.  Customer shall defend, indemnify and hold harmless (“Indemnify”) Particular Audience, its licensors and each of their parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents (“Related Parties”) harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) (“Liabilities”) arising out of or in connection with an unaffiliated third party’s claims (“Claims”): (i) arising from the Websites, the Content, Customer Marks and/or the collection or provision of Customer Data by or to Particular Audience in accordance with the terms of this Agreement, or Particular Audience’s use of the foregoing as permitted under this Agreement, including allegations that any of the foregoing (a) infringes the rights of, or has caused harm to, a third party, (b) contains Harmful Code, or (c) violates Applicable Law; (ii) arising from the Customer’s violation of Applicable Law or use of the Services, the Particular Audience Technology (or any portion thereof), the Content or any materials provided by Particular Audience in a manner not permitted under this Agreement.
9.2.	Particular Audience.  Particular Audience shall Indemnify Customer, its licensors and each of their Related Parties from and against any and all Liabilities arising out of or in connection with any Claims alleging that Customer’s use of Vendor Technology (or any portion thereof) in accordance with this Agreement infringes the rights of, or has caused harm to, a third party; provided that, such indemnification does not apply to the extent that Claims arise from: (i) the infringement or misappropriation data, materials or information provided by Customer to Particular Audience or the Content, (ii) the combination, operation or use of the Vendor Technology (or any portion thereof) with any product or service not provided or authorized in writing by Particular Audience, or (iii) any third party systems, technology, materials or information.
9.3.	Procedure.  Each party’s indemnification obligations are contingent on the indemnified party: (i) giving prompt written notice of the to the indemnifying party; provided that the indemnifying party’s shall be released from its indemnification obligations only to the extent that the indemnified party’s failure to provide prompt notice materially prejudices the Indemnified Party’s ability to defend the Claim, (ii) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnified party may not settle or defend any Claim unless the indemnified party is unconditionally released from all liability and such settlement does not negatively and materially affect the indemnified party’s business); (iii) provides to the indemnifying party all available information and assistance; and (iv) not having compromised or settled the Claim.
10.	Disclaimer of Warranties.  UNLESS EXPLICITLY STATED HEREIN, PARTICULAR AUDIENCE AND ITS LICENSORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED.  THE SERVICES ARE MADE AVAILABLE “AS IS” AND “AS AVAILABLE” AND PARTICULAR AUDIENCE DOES NOT REPRESENT OR WARRANT THAT (I) THE PARTICULAR AUDIENCE TECHNOLOGY (OR ANY PORTION THEREOF) OR THE USE THEREOF WILL BE SECURE, TIMELY, ACCURATE, COMPLETE, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (III) THE SERVICES OR THE INFRASTRUCTURE THAT MAKES THE SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  PARTICULAR AUDIENCE AND ITS LICENSORS HEREBY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  PARTICULAR AUDIENCE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE CONTROL OF PARTICULAR AUDIENCE.
Limitation of Liability.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EACH PARTY’S MAXIMUM LIABILITY HEREUNDER SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE TO PARTICULAR AUDIENCE HEREUNDER IN FEES DURING THE THREE MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE FOR USE OF THE APPLICABLE SERVICE THAT IS THE SUBJECT OF THE CLAIM.

General.

Amendment and Waiver.  Except as otherwise expressly provided herein, any provision of this Agreement may be amended, and the observance of any provision of this Agreement may be waived (either generally or in any particular instance and either retroactively or prospectively) only with the written consent of the parties.  However, it is the intention of the parties that this Agreement hereto be controlling over additional or different terms of any Order Form, confirmation, invoice, or similar document, even if accepted in writing by both parties, and that waivers and amendments shall be effective only if made by written agreements specifically amending or waiving a particular provision and is clearly understood by both parties to be an amendment or waiver. 

Governing Law; Jurisdiction.  This agreement and any disputes or claim arising out of or in connection with it or its subject matter or formation (including any non-contractual disputes and/or claims) shall be governed by and construed in accordance with the law of New South Wales. Each party irrevocably agrees that the courts of that territory shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including any non-contractual disputes and/or claims).

Publicity.  The terms and conditions of this Agreement are confidential and Customer agrees that it will not disclose such terms and conditions, or issue any press releases or other public statements relating to the relationship created by this Agreement without Particular Audience’s prior written approval.  Particular Audience may: (a) make references to the Customer’s usage of the Services; and (b) on an anonymous basis disclose to third parties information obtained and created by providing the Services to Agency and/or Customer.

Monitoring. Particular Audience may monitor Customer’s use of the Services for violations of this Agreement and any other behavior Particular Audience considers harmful. Particular Audience may provide information about Customer’s use of the Services to law enforcement authorities and affected third party vendors or suppliers (e.g., exchanges, networks) in its sole discretion.

Non-Solicitation.  Customer agrees that during the term of this Agreement and for six months thereafter, Customer will not encourage or solicit any employee to leave the employ of Particular Audience; provided that, Customer shall not be prohibited from employing any such person who contacts such party in response to a published general solicitation not specifically targeted at such person.

Assignment.  Neither party may assign this Agreement without the other’s consent, except to an acquirer of all or substantially all of the assets, equity or business of the assigning party.

Headings.  Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.

Notices.  Notices under this Agreement shall be sufficient only if in writing and personally delivered, delivered by a major commercial rapid delivery courier service, delivered by email (with confirmation of receipt) or mailed by U.S. certified or registered mail, return receipt requested, to a party at its addresses first set forth herein or as amended by notice pursuant to this subsection.  If not received sooner, notice by mail shall be deemed received 5 days after deposit in the U.S. mail. Notice to the parties shall be provided to the designated notice recipient at the address or the email address specified on the first page of this Agreement.

Entire Agreement.  This Agreement is not effective until the Order Form is signed by both Parties.  This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among Particular Audience and Customer relating to the subject matter of this Agreement and all past dealing or industry custom.

Relationship of the Parties.  The parties are independent contractors, and nothing in this Agreement shall be deemed to create a joint venture or partnership.

Severability.  If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

Force Majeure. Neither party will be liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure.

Subcontractors. Customer acknowledges that Particular Audience may use third parties to operate the Services and fulfill Particular Audience’s obligations hereunder.  Nonetheless, Particular Audience shall continue to be responsible for the performance of its obligations hereunder by any such subcontractor.

Basis Of Bargain.  EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.