Marin

Terms of Use

MARIN SOFTWARE PROFESSIONAL EDITION TERMS OF USE

Date Last Updated: July 1, 2014

Marin Software Incorporated, a Delaware, USA corporation, with headquarters located at 123 Mission Street, 25th Floor, San Francisco, CA 94105, USA (“Marin Software” or “We”) provides Marin Software Professional Edition (the “Subscription Services”) through our website, accessible at http://app.marinsoftware.com (the “Site”). Please read carefully the following terms and conditions (this “Agreement”) and our Privacy Policy, which may be found at https://www.marinsoftware.com/marin-software-privacy-policy, which is incorporated by reference into this Agreement. This Agreement governs Your access to and use of the Subscription Services and constitutes a binding legal agreement between You and Marin Software.

YOU ACKNOWLEDGE AND AGREE THAT, ACCESSING OR USING THE SUBSCRIPTION SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SUBSCRIPTION SERVICES. If You accept or agree to this Agreement on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind that company or other legal entity to this Agreement and, in such event, “You” and “Your” will refer and apply to that company or other legal entity.

  1. Modification
  2. Eligibility
  3. Account Registration
  4. Subscription Services
  5. Restrictions
  6. Data Security and Storage
  7. Your Obligations
  8. Fees
  9. Proprietary Rights
  10. Confidentiality
  11. Warranty
  12. Term and Termination
  13. Indemnification
  14. Limitation of Liability
  15. General
  16. Definitions
  17. Contacting Marin Software

Modification

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Marin Software reserves the right to modify, discontinue or terminate the Subscription Services or to modify this Agreement, at any time and without prior notice. If we modify this Agreement, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Date Last Updated” at the top of this Agreement. By continuing to access or use the Subscription Services after we have posted a modification on the Site or have provided you with notice of a modification, You are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the Subscription Services.

Eligibility

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The Subscription Services are intended solely for persons who are 18 or older. Any access to, or use of the Subscription Services by anyone under 18 is expressly prohibited. By accessing or using the Subscription Services You represent and warrant that You and Your Authorized Users (defined below) are 18 or older.

Account Registration

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In order to access the Subscription Services, You must register to create an account (“Account”). During the registration process, You will be required to provide certain information and You will establish a password. You agree to provide accurate, current and complete information (including billing information) during the registration process and to update such information to keep it accurate, current and complete. Marin Software reserves the right to suspend or terminate Your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions. You will immediately notify Marin Software of any unauthorized use of Your Account.

Subscription Services

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Subject to Your compliance with the terms and conditions of this Agreement, Marin Software will make the Subscription Services available to You during the Term. You may access and use the Subscription Services solely for Your internal business purposes and You may not resell the Subscription Services without prior written permission from Marin Software. The limitations of this Section are not intended to prevent You from providing agency services using the Subscription Services to Your own customers if You are operating in an agency capacity.

Restrictions

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You shall not attempt to interfere with or disrupt the Subscription Services. You shall not allow access to or use of the Subscription Services by anyone other than Authorized Users or resell the Subscription Services without prior written permission from Marin Software. You shall not: (a) copy, modify, create derivative works from or distribute any portion of the Subscription Services; (b) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis, or otherwise distribute or make the Subscription Services available to third parties; and (c) transfer any of Your rights hereunder to any third party. Notwithstanding the foregoing, You may make the Subscription Services available to Your customers in conjunction with the provision of advertising services to such customers, as part of Your ordinary business activity, provided that the use by Your customers of the Subscription Services shall be subject to all of the restrictions under this Agreement, including, but not limited to, the restrictions under this section. You acknowledge that the Subscription Services constitute and contain valuable trade secrets of Marin Software and its licensors, and, in order to protect such trade secrets and other interests, You agree not to disassemble, decompile or reverse engineer the Subscription Services (or the software used for the provision of the Subscription Services) or allow any third party to do so, except to the extent such restrictions are prohibited by any applicable law. You acknowledge and agree that Marin Software does not monitor or police communications or data transmitted through the Subscription Services and that Marin Software shall not be responsible for the content of any such communications or transmissions. You shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, and You shall not attempt to gain unauthorized access to the Subscription Services or its related systems or networks. You shall not use the Subscription Services to transmit any unsolicited commercial communications in violation of applicable laws, or to send or store via the Subscription Services (i) materials or information which may violate Intellectual Property Rights or other proprietary rights of third parties, or which have been unlawfully obtained or (ii) materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You shall keep confidential and not disclose to any third parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles for the Subscription Services. You may not access the Subscription Services if You are a direct competitor of Marin Software, except with Marin Software’s prior written consent.

Data Security and Storage

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Marin Software shall maintain appropriate archival procedures to store the Subscriber Data (defined below). In the event of any loss or corruption of Subscriber Data, Marin Software shall use its commercially reasonable efforts to restore the lost or corrupted Subscriber Data from the latest backup of such Subscriber Data maintained by Marin Software in accordance with its archival procedures. Marin Software shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Subscriber Data caused by any third party. MARIN SOFTWARE’S EFFORTS TO RESTORE LOST OR CORRUPTED SUBSCRIBER DATA PURSUANT TO THIS SECTION SHALL CONSTITUTE MARIN SOFTWARE’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF SUBSCRIBER DATA. Marin Software reserves the right to establish or modify its general practices and limits relating to storage of Subscriber Data.

Your Obligations

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Cooperation and Assistance. As a condition to Marin Software’s obligations hereunder, You shall at all times: (a) provide Marin Software with good faith cooperation and access to such information as may be reasonably required by Marin Software in order to provide the Subscription Services, including, but not limited to, providing Subscriber Data to Marin Software; (b) provide to Marin Software such personnel assistance, as may be reasonably requested by Marin Software from time to time; (c) carry out in a timely manner all other responsibilities that You have under this Agreement; (d) at Your option, provide Marin Software with feedback, comments, and suggestions for improvements relating to the Subscription Services (“Feedback”), and (e) comply with all applicable local, state, federal and foreign laws in using the Subscription Services.

Marketing Support. During the Term of this Agreement, Marin Software may (a) publish Your corporate logo on its website and in marketing materials that include examples of Marin Software customers and (b) publicly acknowledge You as a Marin Software customer in a press release, provided that Marin Software obtains Your prior written consent. In addition, if You and Marin Software mutually agree, You will participate in a Marin Software customer case study, provided that Marin Software covers the costs of Your participation.

Enforcement. You are responsible for all activity occurring under Your use of the Subscription Services. You shall ensure that all Authorized Users comply with this Agreement, including, without limitation, with Your obligations set forth in the “Restrictions” section. You shall promptly notify Marin Software of any suspected or alleged violation of this Agreement including any unauthorized use of any password or account or any other known or suspected breach of security. You shall cooperate with Marin Software with respect to: (a) any investigation by Marin Software of any suspected or alleged violation of this Agreement and (b) any action by Marin Software to enforce this Agreement. Marin Software may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to You in the event that Marin Software reasonably determines that such Authorized User has violated this Agreement. You shall be liable for any violation of this Agreement by any Authorized User.

Telecommunications and Internet Services. You acknowledge and agree that the use of the Subscription Services by You and by Your Authorized Users is dependent upon access to telecommunications and Internet services. You shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Marin Software shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

Third Party Interactions. During Your use of the Subscription Services, You or Your Authorized Users may maintain accounts with one or more third parties, who provide You or Your Authorized Users with advertising services that may be accessed via the Subscription Services (“Publishers”). Any such advertising services shall be subject to the terms and conditions of Your arrangements with such Publishers, and Marin Software hereby disclaims any and all responsibilities and liabilities related thereto.

Fees

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In consideration for Marin Software providing the Subscription Services, You shall pay to Marin Software all the applicable subscription fees and other charges, as provided for in this section, including any third party API costs (i.e., Publisher API costs) billed to Marin Software in the course of providing the Subscription Services to You (collectively, “Fees”). Marin Software may, in its sole discretion, provide You with a 21 day free trial (the “Free Trial”) to use the Subscription Services. After the Free Trial is over, and if You did not terminate this Agreement during the Free Trial, the monthly Fees for Your use of the Subscription Services shall be as follows; (i) as described and/or as selected by You via the Site at www.marinsoftware.com/pro/pricing; or (ii) negotiated between You and Marin Software on the Order Form signed by You and Marin Software. While as of the Effective Date, You do not incur any third party API costs, if industry practices change in the future so that You do incur such costs, Marin Software will pass through to You all API costs incurred by You and billed to Marin Software at no additional mark up. At the end of each month during the Term of this Agreement, Marin Software will either; (a) automatically bill Your credit card for your use of the Subscription Services, or (b) issue You an invoice for the monthly Fees. Each invoice is due and payable 30 days following the invoice date. Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Marin Software’s net income. Marin Software shall not be responsible for any transfer fees or other fees Your financial institution may impose upon You resulting from Your payment of Your invoice.

Prepaid Fees. Marin Software may require You to pre-pay an agreed to monthly amount for the Subscription Service. Marin Software will credit Your prepaid fees against Your monthly Fees.

Outstanding Fees. If Marin Software has not received payment within 10 days after the invoice due date, interest shall accrue on past due amounts at the rate of one 1.5% per month, but in no event greater that then highest rate of interest allowed by law, calculated from the invoice due date. You shall reimburse Marin Software for the reasonable costs of collection. Including reasonable fees and expenses of attorney’s. If Your account is more than 15 days overdue, i.e. unpaid 45 days past the invoice date, in addition to its other rights, Marin Software reserves the right to suspend the Subscription Services without any liability to You until all overdue Fees are paid in full. You agree and acknowledge that Marin Software has no obligation to retain Company Data and that such Company Data may be deleted from any server or archival records maintained by Marin Software if Your account is overdue for 60 days or more, i.e. 90 days from the invoice date.

Proprietary Rights

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Subject to the limited rights expressly granted hereunder, Marin Software and its licensors exclusively own and retain all rights, title and interest in and to the Subscription Services (including all copies of any software used for the provision of the Subscription Services), including all Intellectual Property Rights therein or relating thereto. You hereby grant to Marin Software a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use, modify and incorporate Your Feedback into the Subscription Services and to further market, distribute and sell the Subscription Services with Your Feedback incorporated therein. You shall exclusively own all rights, title and interest in and to all Subscriber Data. Subscriber Data is deemed Confidential Information under this Agreement. All rights not expressly granted to You are reserved by Marin Software. All trademarks, service marks, logos, trade names and any other proprietary designations of Marin Software used herein are trademarks or registered trademarks of Marin Software.

Confidentiality

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Definition and Exclusions. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. Marin Software Confidential Information includes, without limitation, the Subscription Services and any software used for the provision of the Subscription Services, whether in source or executable code, documentation, nonpublic financial information, pricing information other than pricing publicly disclosed on Marin Software’s website, business and marketing plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services. Subscriber Data is deemed Your 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.

Use and Nondisclosure. During the Term and for a period of 5 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 purposes other than exercising its rights and performing its obligations under this Agreement. You understand and agree that Marin Software shall disclose the Subscriber Data to Publishers for the purpose of providing the Subscription Services to You. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is kept confidential and is not disclosed or distributed by its employees or agents in violation of this 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. Furthermore, You acknowledge and agree that, upon expiration or termination of the Agreement, Marin Software shall either destroy or deliver Subscriber Data back to You, and shall have no other obligation to You regarding such Subscriber Data under this Agreement.

Warranty

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Warranty for Subscription Services. Marin Software warrants that (i) the Subscription Services shall perform materially in accordance with the description of the Subscription Services in Marin Software’s Online Help website, which may be updated from time to time by Marin Software and (ii) the Subscription Services will not contain or transmit to You any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

Disclaimer. You assume sole responsibility and liability for results obtained from the use of the Subscription Services and for conclusions drawn from such use, including with regard to present or future advertising activity. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data. Marin Software shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Marin Software by You or Your Authorized Users, including, without limitation, Subscriber Data, in connection with the Subscription Services or any actions taken by Marin Software at Your direction. Marin Software shall have no liability for any claims, losses or damages arising out of or in connection with the use by You or by any Authorized User of any third-party products, services, software or websites (including the advertising services provided by Publishers) that are accessed via links from within the Subscription Services. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MARIN SOFTWARE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SUBSCRIPTION SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN THE WARRANTY SECTION ABOVE, MARIN SOFTWARE DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. MARIN SOFTWARE FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. MARIN SOFTWARE 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 SOFTWARE OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS 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.

Term and Termination

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Term. This Agreement will commence when: (i) You are granted a Free Trial by Marin Software and You link Your Subscriber Data in the Software or click “I accept” or “I agree”; or (ii) the parties execute an Order Form; or (iii) You purchase Subscription Services directly from the marinsoftware.com website and click “I accept” or “I agree”. The “Term” of this Agreement is the period that this Agreement will be in effect as specified in the Order Form or 1 month if You purchase Subscription Services directly from marinsoftware.com. This Agreement shall automatically renew for the Term on the applicable Order Form, or in the event that the parties did not sign an Order Form, this Agreement shall automatically renew for subsequent one-month periods at Marin Software’s then-current Fees

Termination. In the event of a month-to-month Term, You may terminate this Agreement by providing Marin Software 15 days written notice to Marin Software. Provided however, You acknowledge and agree that We will bill You a pro-rated amount beginning upon the data of Your termination through the end of the then current month subject to the monthly minimum Fee. Marin Software may terminate this Agreement at any time if it reasonably determines that You are in material breach of this Agreement, including, but not limited to, timely payment of Fees. In addition, We may terminate Your Account any time during the Free Trial. Unless the parties have agreed to a specified term in an applicable Order Form, after the Free Trial period, We may terminate this Agreement, for any reason, upon 30 days notice to You.

Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Your and Your Authorized Users right to access and use the Subscription Services shall immediately terminate, You and Your Authorized Users shall immediately cease all use of the Subscription Services, and You shall return to Marin Software and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to Marin Software. Marin Software may destroy or otherwise dispose of any Subscriber Data in its possession unless Marin Software receives, no later than 30 days after the expiration or termination date, a written request to deliver to You the then-most recent back-up of the Subscriber Data. Marin Software will deliver such back-up copy to You within 30 days of receipt of such request. If requested by Marin Software, You shall pay all reasonable expenses incurred by Marin Software in returning Subscriber Data to You. You agree and acknowledge that Marin Software has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, 30 days after the expiration or termination date. Notwithstanding the foregoing, if this Agreement is terminated as a result of Your breach, Marin Software shall have no obligation to deliver any copy of the Subscriber Data to You, and may delete such Subscriber Data at any time. Furthermore, upon expiration or termination of this Agreement, Marin Software shall cease use of the Your corporate logo; provided, however, that (a) Marin Software shall have a reasonable time to remove Your corporate logo from Marin Software’s website as well as from any promotional materials, (b) Marin Software shall be entitled to distribute all of the promotional materials printed during the Term that include Your corporate logo, and (c) Marin Software shall not be required to remove any such printed materials from circulation.

Survival. The following sections shall survive any expiration or termination of this Agreement: “Restrictions”, “Proprietary Rights”, “Confidentiality”, “Warranty”, “Rights and Obligations Upon Expiration or Termination”, “Survival”, “Indemnification”, “Limitation of Liability”, “Governing Law” and “Compliance with Laws”.

Indemnification

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Indemnification by Marin Software. Marin Software shall defend (or settle) any suit or action brought against You to the extent that it is based upon a claim that the Subscription Services infringe or misappropriate the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against You. Marin Software’s obligations under this section are contingent upon: (a) You providing Marin Software with prompt written notice of such claim; (b) You providing reasonable cooperation to Marin Software, at Marin Software’s expense, in the defense and settlement of such claim; and (c) Marin Software having sole authority to defend or settle such claim. In the event that Marin Software’s right to provide the Subscription Services is enjoined or in Marin Software’s reasonable opinion is likely to be enjoined, Marin Software may obtain the right to continue providing the Subscription Services, replace or modify the Subscription Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to You. THE FOREGOING STATES THE ENTIRE OBLIGATION OF MARIN SOFTWARE AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. Marin Software shall have no liability under this section to the extent that any third-party claims described herein are based on use of the Subscription Services in a manner that violates this Agreement or the instructions given to You by Marin Software.

Indemnification by You. You shall defend (or settle), indemnify and hold harmless Marin Software, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from the use by You or by any Authorized User of the Subscription Services, or (ii) the Subscriber Data, or the use by You or by any Authorized User of the Subscription Services in violation of this Agreement, infringes or violates the Intellectual Property Rights or other proprietary rights of a third party. Your obligations under this section are contingent upon: (a) Marin Software providing You with prompt written notice of such claim; (b) Marin Software providing reasonable cooperation to You, at Your expense, in the defense and settlement of such claim; and (c) You having sole authority to defend or settle such claim.

Limitation of Liability

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EXCEPT FOR LIABILITY ARISING FROM A BREACH OF THE “RESTRICTIONS” SECTION AND THE “ENFORCEMENT” SECTION, 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. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL MARIN SOFTWARE’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. IN NO EVENT SHALL MARIN SOFTWARE’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH ITS CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000 USD).

General

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Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the San Francisco County. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

Severability. 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.

Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “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 affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

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 export laws and regulations of the United States.

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 to incur obligations on the other’s behalf without such other party’s prior written consent.

Assignment. Neither party may assign this Agreement without prior written consent unless in connection with a merger, acquisition, or sale of all or substantially all of Marin Software’s or Your assets, and provided that the surviving entity has agreed to be bound by this Agreement. Notwithstanding the foregoing, Marin Software may assign this Agreement to any of its Affiliates without Your prior written consent.

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.

Equitable Relief. You acknowledge that a breach by You of any confidentiality or proprietary rights provision of this Agreement may cause Marin Software irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Marin Software 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.

No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.

Notice. Marin Software may give notice to You by e-mail to Your e-mail address on record in Marin Software’s account information. You may give notice to Marin Software by sending an e-mail to info@marinsoftware.com.

Definitions

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“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, Marin Software Incorporated; as used in this definition, the term “control” means the ownership of at least fifty percent (50%) of the equity of that entity or possessing the power to direct or cause the direction of the management of that entity.

“Authorized User” means Your employees, consultants, contractors, customers or agents that have (i) been assigned a unique username-password combination to access and use the Subscription Services, (ii) registered on-line to access and use the Subscription Services and (iii) agree to comply with the terms and conditions of this Agreement.

“Confidential Information”, as used in this Agreement, means any written, machine-reproducible and/or visual materials that are labelled 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 thirty (30) days after disclosure

“Effective Date” means the date first on record with Marin Software for Your clicking the check box to accept this Agreement or the date of Your first accessing and using the Subscription Services.

“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

“Linked to” means the media activity is viewable in the Subscription Services.

“Subscriber Data” means proprietary data and information input or authorized to be input by You or by any Authorized Users into, and stored by, the Subscription Services or input or authorized to be input by You or by any Authorized Users into, and stored by, third parties.

Contacting Marin Software

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If you have any questions about this Agreement, please contact Marin Software at info@marinsoftware.com or see our contact information at https://www.marinsoftware.com/contact-us.

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