Effective May 9, 2019
Thanks for using our products and services (the “Services”). The Services are provided by Marin Software Incorporated which is located at 123 Mission Street, 27th Floor, San Francisco, CA 94105 USA (“Marin”). By using our Services, you (“You, or “Your”) are agreeing to these Terms of Service (“Agreement”). By registering and obtaining access to the Services, You accept this Agreement or on behalf of Your organization and agree to be bound by its provisions.
1.1 License. Subject to Your compliance with this Agreement, Marin grants to You a limited, worldwide, non-exclusive, non-transferable (except as permitted in this Agreement) license to use the Services and Documentation during the Term solely for Your own internal business purposes.
1.2 Restrictions. You and Your Authorized Users shall not:
(A) knowingly permit access to the Services by anyone other than Your Authorized Users;
(B) copy, modify, distribute, resell, display, or rent any portion of the Services;
(C) attempt to disassemble, duplicate, copy, modify, decompile, frame, mirror, create derivative works from, reverse engineer, or distribute any portion of the Services or permit any third party to do so;
(D license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except Your Authorized Users and Your customers, or attempt to obtain, or assist third parties in obtaining access to the Services and/or Documentation;
(E) use the Services to transmit any unsolicited commercial communications unless permitted by law;
(F) send, store, or transmit data that may violate the intellectual property rights of any third party, or which have been unlawfully obtained;
(G) send, store, or transmit materials or data into the Services containing Viruses, or use the Services to transmit Viruses to third parties;
(H) use the Services to store, transmit, or process data that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property; and Marin reserves the right, without liability or prejudice to any other rights, to disable Your access to the Services if You violate this Section 1.2(H); and
(I) except as permitted herein, share with any third parties, any Credentials, account numbers, and account profiles for the Services.
2. PROPRIETARY RIGHTS.
2.1 Marin and its licensors exclusively own and retain all rights, title, and interest in and to the Services, including all Intellectual Property Rights therein or relating thereto. All rights not expressly granted to You in this Agreement are reserved by Marin.
2.2 Subscriber Data. You shall exclusively own the Subscriber Data. You hereby grant to Marin a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term to use Subscriber Data as part of the Services. You grant Marin a worldwide, irrevocable, non-exclusive, transferable, fully paid-up, and royalty-free license to aggregate, use, display, reproduce, distribute, and analyze Aggregated Subscriber Data in any format and through any applicable channels for any legal purposes.
2.3 Aggregated Use Data. You acknowledge and agree that Marin may collect Aggregated Use Data related to Your use of the Services collected in accordance with this Agreement in order to continue to develop, improve functionality of, and provide bug-fixes for the Services. Marin is the sole owner of Aggregated Use Data.
3. PRIVACY AND DATA SECURITY.
3.1 Personally Identifiable Data. You may not transfer, or cause to be transferred, or input Personal Data into the Services without notifying Marin in writing. To the extent that Subscriber Data is collected by, or on behalf of, You represent and warrant that all appropriate consents and waivers have been or will be obtained from such end-user(s).
3.2 Data Security and Storage. Marin shall maintain commercially reasonable, industry standard security practices to transmit, store, and process Subscriber Data. In the event of Subscriber Data loss or corruption, Marin will use commercially reasonable efforts to restore such lost or corrupted data from the latest backup of Subscriber Data maintained by Marin. Marin shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Subscriber Data not directly under the control of Marin. MARIN’S EFFORTS TO RESTORE LOST OR CORRUPTED SUBSCRIBER DATA PURSUANT TO THIS SECTION, SHALL CONSTITUTE MARIN’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF SUBSCRIBER DATA.
3.3 Privacy. Marin shall comply with all applicable laws relating to Personal Data. If You, or Your Authorized Users are located in the European Union, Marin’s Data Processing Agreement which is located at: https://www.marinsoftware.com/privacy/privacy-central shall apply to Marin’s processing of Personal Data received from You.
4. YOUR OBLIGATIONS.
4.1 Enforcement. You are responsible for Your Authorized Users’ use of the Services. You shall promptly notify Marin of any suspected or alleged violation of this Agreement by an Authorized User, including any unauthorized use of a Credential, account or any other known or suspected breach of security of the Services.
4.2 Telecommunications and Internet Services. Your use of the Services is dependent upon Your access to the Internet. You must acquire and maintain at Your own expense Internet services. Marin shall not be responsible or liable for any data loss or corruption, lost communications, or any other losses or damages caused by Your Internet service providers.
4.3 Third Party Interactions. You or Your Authorized Users may maintain accounts with Publishers that may be accessed via the Services. Any such accounts shall be subject to the terms and conditions of Your arrangements with such Publishers, and Marin hereby disclaims any and all responsibilities and liabilities related thereto.
5.1 Definition and Exclusions. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
5.2 Use and Nondisclosure. During the Term and for a period of three years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than exercising its rights and performing its obligations under this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information. Upon termination of this Agreement, Marin will destroy the Subscriber Data and shall have no other obligation to You regarding such Subscriber Data under this Agreement.
6. DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SUBJECT MATTER OF THE AGREEMENT OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, MARIN DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. MARIN FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. MARIN FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MARIN OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
7. TERM AND TERMINATION
7.1 Term & Termination. This Agreement shall begin upon Your acceptance by clicking the “I agree” button and shall remain in until either party terminates this Agreement (the “Term”). Either party may terminate this Agreement by providing the other party 30 days’ written notice of its intent to terminate this Agreement.
7.2 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement: (i) Your and Your Authorized Users right to access and use the Services shall immediately terminate; (ii) You and Your Authorized Users shall immediately cease all use of the Services; and (iii) the parties will make no further use of any Confidential Information belonging to the other party.
7.3 Survival. Sections 5, 6, 8, and 11 shall survive any expiration or termination of the Agreement for so long as either of the parties has any rights, duties or obligations thereunder.
Each party (an “Indemnifying Party”) will indemnify, defend, and otherwise hold harmless the other party (the “Indemnified Party”), its officers, directors, employees, agents, and subsidiaries from and against any claim or suit brought by a third party against the Indemnified Party relating to, or resulting from, the Indemnifying Party’s breach or alleged breach of the Agreement or any of the Indemnifying Party’s representations and warranties hereunder or violation of a third party’s Intellectual Property Rights. The Indemnified Party will promptly notify the Indemnifying Party of any and all such claims and will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts the Indemnified Party in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement will require the Indemnified Party's written consent (to be granted or withheld at the Indemnified Party’s sole discretion) and the Indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
9. LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS HEREIN REGARDING CONFIDENTIAL INFORMATION, A BREACH OF SECTION 1.3 (RESTRICTIONS), OR IN CONNECTION WITH THE INDEMNIFICATION OF THIRD PARTY CLAIMS RELATING TO INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND (B) IN NO EVENT SHALL MARIN’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT OR YOUR ACCESS TO AND USE OF THE SERVICES EXCEED ONE-THOUSAND DOLLARS ($1,000) USD, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
10.1 Governing Law. This Agreement and all matters arising out of or relating hereto shall be governed by the laws of the State of California, without regard to its conflict of laws provisions; provided that this Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if adopted in California. If You are outside of the United States, the parties agree that this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the courts located in San Francisco, California.
10.2 Waiver and Severability. The waiver by either party of any default or breach of this Agreement shall be in writing and shall not constitute a waiver of any other or subsequent default or breach. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
10.3 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party (“Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
10.4 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any applicable export laws and regulations of the United States.
10.5 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent.
10.6 Assignment. Neither party may assign this Agreement without prior written consent of the other party unless in connection with a merger, acquisition, or sale of all or substantially all of a party’s assets, and provided that the surviving entity has agreed to be bound by this Agreement.
10.7 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
10.8 Equitable Relief. The parties agree that a breach by either party of any confidentiality or proprietary rights provision of this Agreement may cause that party irreparable damage, for which the award of damages would not be adequate compensation. Either party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
10.9 No Third-Party Beneficiaries. Unless specified otherwise in this Agreement, no third party shall have any rights or obligations under the Agreement.
10.10 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
10.11 Notice. Marin may give notice to You by email to Your email address on record in Marin’s account information. You may give notice to Marin by sending an email to email@example.com.
10.12 Modification. Marin may update this Agreement at any time. Modified terms are in effect as soon as they are available to You.
“Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or control with, a party; as used in this definition, the term “control” means the ownership of at least 50% of the equity of that entity or possessing the power to direct or cause the direction of the management of that entity.
“Aggregated Use Data” means data concerning the use, performance, and measurement data created by, or made available through the Services. These data may be related to or derived from Your use of the Services. Aggregated Use Data does not identify or permit identification of You, or Your customers, or contain Personal Data.
“Aggregated Subscriber Data” means aggregated Subscriber Data collected by Marin for the purpose of providing certain functionality within the Services that is not directly accessible by, or identifiable to any other Marin customer.
“Authorized User” means Your employees, consultants, contractors, customers, or agents that have (i) been assigned a Credential to access and use the Services, (ii) registered to access and use the Services, and (iii) agree to comply with the terms and conditions of the Agreement.
“Confidential Information” means any written, machine-reproducible and/or visual materials that are labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within 30 days after disclosure. Marin Confidential Information includes, without limitation, the Services and any software used for the provision of the Services, whether in source or executable code, documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Services.
“Documentation” means materials provided online via the Services in the help and training sections of the Services.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, with respect to Marin, includes Aggregated Use Data and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Personal Data” means any data related to an identified or identifiable individual natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to its physical, physiological, mental, economic, cultural or social identity. “Publisher(s)” means one or more third parties, who provide You or Your Authorized Users with advertising services or other services that may be accessed via the Services.
“Subscriber Data” means (a) Your proprietary data input by You or Your Authorized Users in the Services, (b) Your proprietary data received by the Services from Your Publishers, and (c) Subscriber Content that is stored or processed by the Services. Subscriber Data is deemed Your Confidential Information.
“Subscriber Content” means materials or advertisements created by or uploaded by Your Authorized Users into the Services.
“Viruses” means software viruses, works, Trojan horses, or other harmful computer codes, agents, scripts, files or programs.