Terms of Use

Marin Software Subscription Services Terms of Use

Date Last Updated: November 9, 2021

These Marin Software Subscription Services Terms of Use (“Terms of Use”) are entered into between you (“You” or “Your”), and Marin Software Incorporated, located at 123 Mission Street, 27th Floor, San Francisco, California 94105 (“Marin Software”). If You accept or agree to these Terms of Use on behalf of a company or other legal entity by executing an Order Form referencing these Terms of Use (together the "Agreement"), You represent and warrant that You have the authority to bind that company or other legal entity to these Terms of Use. “You” and “Your” will refer and apply to that company or other legal entity.

Please carefully read these Terms of Use and our Privacy Policy, located at https://www.marinsoftware.com/privacy/privacy-central. The Agreement governs Your access to the use of the Subscription Services and constitutes a binding legal agreement between You and Marin Software.

YOU ACKNOWLEDGE AND AGREE THAT, BY EXECUTING AN ORDER FORM REFERENCING THESE TERMS OF USE AND ACCESSING THE SUBSCRIPTION SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, PLEASE CONTACT YOUR ACCOUNT MANAGER AS SOON AS POSSIBLE AND DO NOT ACCESS OR USE THE SUBSCRIPTION SERVICES.

1. SUBSCRIPTION SERVICES.

1.1 License.

Subject to Your compliance with the Agreement, Marin Software grants to you a limited, worldwide, non-exclusive, non-transferable (except as permitted in the Agreement) license to use the Subscription Services as described on an applicable Order Form and Documentation during the Term solely for Your own internal business purposes.

1.2 Affiliate Use.

Marin Software may make the Subscription Services available to Your Affiliates, provided that such Affiliate(s) execute an Order Form referencing these Terms of Use. You may make the Subscription Services available to Your customers as part of Your provision of services to Your customers provided that You shall be fully responsible for Your customer use of the Subscription Services and You have the authority to act on behalf of such customers with respect to all obligations and representations set forth in these Terms of Use.

1.3. Restrictions.

You and Your Authorized Users shall not:

(A) knowingly permit access to the Subscription Services by anyone other than Your Authorized Users;

(B) copy, modify, distribute, resell, display, or rent any portion of the Subscription Services except as permitted under the Agreement;

(C) attempt to disassemble, duplicate, copy, modify, decompile, frame, mirror, create derivative works from, reverse engineer, or distribute any portion of the Subscription Services or permit any third party to do so;

(D) subject to Your rights permitted under these Terms of Use, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services and/or Documentation available to any third party except Your Authorized Users and customers, or attempt to obtain, or assist third parties in obtaining, access to the Subscription Services and/or Documentation;

(E) use the Subscription 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 Subscription Services containing Viruses, or use the Subscription Services to transmit Viruses to third parties;

(H) use the Subscription 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 Software reserves the right, without liability or prejudice to any other rights, to disable Your access to the Subscription Services if You violate this Section 1.3(H); and

(I) except as permitted herein, share with any third parties, any Credentials, account numbers, and account profiles for the Subscription Services.

2. PROPRIETARY RIGHTS.

2.1 Marin Software and its licensors exclusively own and retain all rights.

Marin Software owns and retains title and interest in and to the Subscription Services, including all copies of any software used for the provision of the Subscription Services and all Intellectual Property Rights therein or relating thereto. All rights not expressly granted to You in the Agreement are reserved by Marin Software.

2.2 Feedback.

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.

2.3 Subscriber Data.

You shall exclusively own all rights, title, and interest in and to the Subscriber Data. You hereby grant to Marin Software a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term of the Agreement and the follow-on period described in Section 8.3(B) to: (i) collect, analyze, use, store, and transmit the Subscriber Data, (ii) combine and aggregate the Subscriber Data with other data to perform the Subscription Services, and (iii) to disclose the Subscriber Data as required by law. You grant Marin Software 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.

2.4 Aggregated Use Data.

You acknowledge and agree that Marin Software may collect Aggregated Use Data related to Your use of the Subscription Services collected in accordance with the Agreement in order to continue to develop, improve functionality of, and provide bug-fixes for the Subscription Services. Marin Software 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 Subscription Services without notifying Marin Software in writing. To the extent that Subscriber Data is collected by, or on behalf of, You or Your customers from end users by the Subscription Services, You represent and warrant that all appropriate consents and waivers have been or will be obtained from such end-user(s).

3.2 Privacy Policies and Opt-outs.

If you use Marin Smart Pixel or Marin Tracker, You must post on Your website(s) a privacy policy that: (A) complies with all applicable laws, rules, and regulations, (B) accurately discloses the data collection, use, and disclosure practices applicable to such site, and (C) discloses the use of one or more third parties for ad serving and/or data collection activities. The parties agree that their privacy polic(ies) will provide end-users with a conspicuous link to a functional opt-out page so that end-users may opt-out of tracking activities. You may not use Subscription Services to collect data derived from end-user or data pertaining to an end-user who has opted-out of having those data collected. The parties agree to use industry-standard security measures in connection with their obligations hereunder, including industry-standard security measures for data transmission and storage.

3.3 Data Security and Storage.

Marin Software 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 Software will use commercially reasonable efforts to restore such lost or corrupted data from the latest backup of Subscriber Data maintained by Marin Software. Marin Software shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Subscriber Data not directly under the control of Marin Software. 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 modify its data storage practices, so long as those modifications do not reduce or diminish those storage practices in effect as of the Effective Date.

4. YOUR OBLIGATIONS.

4.1 Marketing Support.

During the Term, You grant Marin Software the right to publish Your corporate logo on its website and in marketing materials that include examples of Marin Software customers and publicly acknowledge You as a Marin Software customer in a press release, the content of which, Marin Software and You shall mutually approve in advance. Subject to Your agreement, You may participate in a Marin Software customer case study, provided that Marin Software covers the costs of Your participation.

4.2 Enforcement.

You are responsible for Your Authorized Users’ use of the Subscription Services. You shall promptly notify Marin Software of any suspected or alleged violation of the Agreement by an Authorized User, including any unauthorized use of any password or account or any other known or suspected breach of security of the Subscription Services. 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 the Agreement.

4.3 Telecommunications and Internet Services.

You understand that Your Authorized Users use of the Subscription Services is dependent upon Your access to telecommunications and internet services. You must acquire and maintain at Your own expense such telecommunications and Internet services, including, without limitation, any and all fees and taxes of any kind related to the foregoing. Marin Software shall not be responsible or liable for any data loss or corruption, lost communications, or any other losses or damages caused by Your telecommunications and internet service providers or due to Your utilizing telecommunications and internet services.

4.4 Third Party Interactions.

You or Your Authorized Users may maintain accounts with Publishers that may be accessed via the Subscription Services. Any such accounts 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.

5. FEES.

In consideration for Marin Software providing the Subscription Services, You shall pay to Marin Software those Fees described in the applicable Order Form.

5.1 Invoices.

You agree to provide Marin Software with complete and accurate billing and contact information on the Order Form. The Fees shall commence on the Billing Start Date defined on the applicable Order Form. Platform Fees will be due even if You do not use the Subscription Services during a particular month or if Your use of the Subscription Services does not meet the lowest level of Fees calculated from the percent of spend rate. At the end of each month, Marin Software will automatically issue an invoice to You, or bill Your credit card for the Subscription Services. Marin Software will invoice You in accordance with the Order Form and will either (i) bill You in advance for the Platform Fees and bill You at the end of each month for any Fees in excess of the Platform Fees, or (ii) issue You with a single invoice at the end of each month for all Fees. Each invoice is due and payable as described on the Order Form (the “Due Date”).

5.2 API Costs.

If You incur third party API costs through Your use of the Subscription Services and such API costs are billed to Marin Software by Your Publishers, Marin Software will invoice You the applicable API costs at no additional mark up and You agree to pay Marin Software for such API costs. Marin Software will provide You with notice if such API costs are imposed on You.

5.3 Disputes and Overdue Payments.

If You believe in good faith that Your invoice is incorrect, You must contact Marin Software in writing within 10 days of Your receipt of the invoice and describe (in reasonable detail) the amount of the disputed charges and the reason for Your good faith disagreement. If Marin Software has not received payment within 10 days after the Due Date, interest shall accrue on the past due amounts at the rate of one and 1.5% per month, but in no event greater than the highest rate of interest allowed by law, calculated from the Due Date until the date that payment is received by Marin Software. You shall reimburse Marin Software for the reasonable costs of collection, including reasonable fees and expenses of attorneys. If Your account is 30 days or more past the Due Date, in addition to any of its other rights or remedies, Marin Software reserves the right to suspend the Subscription Services, without liability to You, until such amounts are paid in full.

5.4 Bank Fees.

Marin Software shall not be responsible for any fees Your financial institution may impose upon You in the payment of Your invoice (including without limitation any transfer fees).

5.5 Taxes.

Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT if applicable) (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.

6. CONFIDENTIALITY

6.1 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.

6.2 Use and Nondisclosure.

During the Term and for a period of three years after expiration or termination of the 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 the 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. 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 pursuant to Section 8.3, and shall have no other obligation to You regarding such Subscriber Data under this Agreement.

7. WARRANTY

7.1 Warranty for Subscription Services.

Marin Software warrants that the Subscription Services shall perform materially in accordance with the Documentation, which may be updated from time to time by Marin Software, and 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.

7.2 Disclaimer.

EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF USE, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, 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.

8. TERM AND TERMINATION

8.1 Term.

These Terms of Use shall commence on the Effective Date and shall remain in effect so long as the current or any subsequent Order Form(s) for the Subscription Services that references these Terms of Use is in effect.

8.2 Termination for Cause.

Either party may terminate the Agreement upon written notice: (A) if the other party materially breaches the Agreement and fails to correct the breach within 30 days following written notice specifying the breach; (B) if there is an adjudication of bankruptcy of any party under any bankruptcy or insolvency law; or (C) if a receiver for business or property of the other property is appointed or the other party makes any general assignment for the benefit of its creditors. Marin Software may terminate a trial account or free account at any time in its sole discretion.

8.3 Rights and Obligations Upon Expiration or Termination.

(A) Upon expiration or termination of the Agreement: (i) Your and Your Authorized Users right to access and use the Subscription Services shall immediately terminate; (ii) You and Your Authorized Users shall immediately cease all use of the Subscription Services; and (iii) the parties will make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.

(B) Marin Software will destroy or dispose of Your 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 Your Subscriber Data. Marin Software shall make commercially reasonable efforts to deliver the back-up copy to You within 30 days of receipt of such request. If requested by Marin Software, You shall pay reasonable expenses incurred by Marin Software in returning Subscriber Data to You. You agree and acknowledge that Marin Software has no obligation to retain and may delete Your Subscriber Data after 30 days from the expiration or termination date of the Agreement. Marin Software may retain all Aggregated Subscriber Data upon termination or expiration of the Agreement.

(C) Notwithstanding the foregoing, if the 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 after termination of the Agreement.

(D) Upon expiration or termination of the Agreement, Marin Software shall stop using Your corporate logo; provided, however, (i) Marin Software shall have a reasonable time to remove Your corporate logo from Marin Software’s website as well as from any promotional materials, (ii) Marin Software shall be entitled to distribute all of the promotional materials printed during the Term that include Your corporate logo, and (iii) Marin Software shall not be required to remove any such printed materials from circulation.

8.4 Survival.

Section 5 shall survive any expiration or termination of the Agreement for so long as either of the parties has any rights, duties or obligations thereunder. Sections 1.3, 2, 3, 6, 8.3, 8.4, 9, 10 and 11.1 shall survive any expiration or termination of this Agreement.

9. INDEMNIFICATION.

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.

10. 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 SOFTWARE’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT OR YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE 12 MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

11. GENERAL.

11.1 Governing Law.

Unless otherwise specified in the attached Country Schedule, the Agreement and all matters arising out of or relating to the Agreement shall be governed by the laws of the State of California, without regard to any conflict of laws provisions that would apply the laws of an other jurisdiction; provided that the 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 that law is adopted in California. If You are outside of the United States, the parties agree that rights and obligations of the parties under the 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 San Francisco, California. 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.

11.2 Waiver and Severability.

The waiver by either party of any default or breach of the 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 the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.

11.3 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 Fees due) 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, pandemics, 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 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.

11.4 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, the applicable export laws and regulations of the United States.

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

11.6 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 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 consent.

11.7 Entire Agreement.

These Terms of Use together with each Order Form and any exhibits hereto 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 the Agreement. In the event of any inconsistency between the applicable Order Form and these Terms of Use (or its exhibits), these Terms of Use (or its exhibits) shall control, unless the Order Form expressly states that such term supersedes the conflicting term of these Terms of Use.

11.8 Modification.

Marin Software reserves the right to modify these Terms of Use at anytime. Modified Terms are in effect as soon as they are available to You online at the following link: https://www.marinsoftware.com/terms-of-use. Marin Software will update the Last Updated date at the top of this page if we modify these Terms of Use. You have 14 days after the Last Updated Date to contact Marin Software to terminate the Agreement if You disagree with the changes. After 14 days, all changes are binding for the remainder of the Term.

11.9 Equitable Relief.

The parties agree that a breach by either party of any confidentiality or proprietary rights provision of these Terms of Use may cause that party irreparable damage, for which the award of damages may not be adequate compensation. Consequently, either party may institute an action seeking an injunction to enjoin 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.

11.10 No Third-Party Beneficiaries.

Unless specified otherwise in the Agreement, no third party shall have any rights or obligations under the Agreement.

11.11 Headings.

The headings in these Terms of Use are for the convenience of reference only and have no legal effect.

11.12 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 email to legal@marinsoftware.com.

12. DEFINITIONS

“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 Subscription Services. These data may be related to or derived from Your use of the Subscription 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 Software for the purpose of providing certain functionality within the the Subscription Services that is not directly accessible by, or identifiable to any other Marin Software customer.

“Agreement” means these Terms of Use, any exhibits attached hereto, any amendments to these Terms of use, and any applicable Order Forms referencing these Terms of Use.

“Authorized User” means Your employees, consultants, contractors, customers, or agents that have (i) been assigned a Credential to access and use the Subscription Services, (ii) registered to access and use the Subscription 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 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 other than pricing publicly disclosed on Marin Software’s website, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services.

“Cookie” means a text file that is set on a computer when the computer communicates with a server and is recovered by that server.

“Credentials" means the user identification and password to the Subscription Services delivered to You by Marin Software, or set by You via the Subscription Services.

“Documentation” means materials provided online via the Subscription Services in the help and training sections of the Subscription Services.

“Effective Date" means the date these Terms of Use are executed by both parties.

“Feedback” means voluntary comments and suggestions for improvements relating to the Subscription Services provided by You to Marin Software.

“Fees” means the charges specified in an Order Form.

“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, with respect to Marin Software, data generated by or otherwise derived from Your use of Subscription Services and any other intellectual property rights recognized in any country or jurisdiction in the world.

“Order Form” means a Marin Software Subscription Services order form that specifies the Fees, configuration, subscription period, and other details of the Subscription Services to be provided by Marin Software to You.

“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 Subscription Services.

“Subscriber Data” means any data that: (a) collects via Marin Software’s Cookies on Your properties, (b) Your proprietary data input by You or Your Authorized Users in the Subscription Services, (c) Your proprietary data received by the Subscription Services from Your Publishers, and (d) Subscriber Content that is stored or processed by the Subscription Services. Subscriber Data is deemed Your Confidential Information.

“Subscriber Content” means materials or advertisements created by or uploaded by Your Authorized Users into Marin Display or Marin Social for integration with Publisher Content.

“Subscription Services” means Marin Software’s hosted, online software application, accessible via web browser at the URL www.marinsoftware.com, www.socialmoov.com and any other URLs as Marin Software may designate from time-to-time and any optional third party services ordered by You and provided to You through Marin Software.

“Term” means the period specified in the Order Form(s).

“Viruses” means software viruses, works, Trojan horses, or other harmful computer codes, agents, scripts, files or programs.

Exhibit A – Product Specific Terms

This Exhibit A “Product Specific Terms” attaches to the Terms of Use and provides the product specific terms applicable to Your use and purchase of the Subscription Services as defined on the applicable Order Form(s).

I. MARINONE SEARCH TERMS.

1. MarinOne Search.

MarinOne Search (either the Enterprise or Professional editions) is a component of the Subscription Services that provides certain functionality subject to Your purchased configuration and services; (A) manage daily workflows across Your search Publishers, (B) assemble audience, revenue, and contextual data in a centralized location for analysis, (C) track monthly search budget to optimize toward defined key performance indicators, (D) access to Marin Software’s intelligent search bidding algorithms, and (E) use of Marin Tracking Pixel.

2. Disclosure to Publishers.

You acknowledge and agree that Marin Software will disclose certain Subscriber Data to Your Publishers for the purpose of providing the MarinOne Search Services to You.

II. MARINONE SOCIAL TERMS

1. MarinOne Social.

MarinOne Social is a component of the Subscription Services, which facilitates the creation, exchange, and management by users of advertising content and advertising campaigns on certain social media platforms (as defined in the applicable Order Form). MarinOne Social shares Subscriber Data and Subscriber Content with Your social media Publisher accounts through the standard API program of certain social media platforms.

2. MarinOne Social Requirements.

The parties agree to comply with the applicable social media platform’s guidelines or applicable user policy or any such equivalent rules as are in force from time to time in the jurisdiction that You, or Your Authorized Users are using MarinOne Social or as imposed during the Term. The parties obtain and maintain all necessary licenses, consents, and permissions necessary for the parties to perform their obligations under the Agreement. You are solely responsible for accessing the contents of Your accounts on Your social media platforms, and for entering into any transactions via the MarinOne Social with Your social media platforms.

III. FEED MANAGEMENT, SMARTFEED, DYNAMIC CAMPAIGNS TERMS

1. Data Services.

1.1 Marin Software partners with third party services providers (such as Feedonomics (the “Data Services Provider(s)”) to provide certain services as part of the Subscription Services (the “Data Services”). The Data Services are provided by the Data Services Provider to provide individual product (SKU) data management and distribution to product marketing channels.

1.2 Access to Your Marketing Channels. The Data Services process certain elements of the Subscriber Data and transmit such data to various online marketing channels (e.g. Google Shopping, eBay), with which You maintain Your own accounts. To facilitate the transmission of processed Subscriber Data from the Data Services to these online marketing channels, You may be required to provide Your credentials with each of Your online marketing channels to the Data Services Providers.

IV. MARINONE ENHANCED SOCIAL AUDIENCES

1. Data Services.

1.1 the audiences information and other data services to be provided to the Subscriber in connection with MarinOne Enhanced Social Audiences (the “Custom Segments”) will be created and provided by Experian Marketing Solutions, LLC or another third party unrelated to Marin Software (the “Audiences Provider”), which shall be solely responsible for the accuracy and completeness of the Custom Segments;

1.2 the Audiences Provider will not deliver the Custom Segments to Marin Software on behalf of the Subscriber, but will instead upload the Custom Segments directly to Subscriber’s Facebook account managed by Marin Software;

1.3 the Subscriber authorizes the Audiences Provider for partner access to Subscriber’s Facebook account in accordance with Facebook’s policies to upload the Custom Segments and authorizes the Audiences Provider and Marin Software to access and track usage from Subscriber’s Facebook account ID on Marin Software’s platform for invoicing purposes;

1.4 the Custom Segments may be used only in advertising campaigns in only a single Facebook account ID managed on Marin Software’s platform (to the extent that Custom Segments are used in multiple accounts, the fees will reflect such multiple account usage);

1.5 Marin Software may terminate any MarinOne Enhanced Social Audiences services at any time upon notice to Subscriber, and upon any expiration or termination of any such services, Subscriber shall immediately cease all use of the applicable Custom Segments; and

1.6 Subscriber shall be responsible for ensuring that all use of the Custom Segments complies with Facebook’s policies.

V. SUPPORT AND SERVICE LEVELS .

The specific support and service levels purchased by You are described on Your current Order Form (the “Service and Support Level”). The tables below provide the details for each level of Service and Support Level You are eligible during the Term. Marin Software may provide additional support and services to You, in addition to the specific items in Your applicable Service and Support Level in its sole discretion, or for additional Fees.


Direct Advertiser Support and Service Levels
Service Packages
Professional Services
Training
Account Support
Mid-market
  • Unlimited Integrations from the following: GA, Publisher Tracking, Standard Revenue Upload or Marin Tracker.
  • One Marin Social Revenue Integration: Publisher tracking.
  • Historical Search Revenue Data: 1 included, (must be included in the Order Form).
  • Training courses are available via self-paced online video content, Marin Live programs, and Marin University.
  • Unlimited Marin Certifications.
  • Up to three hours of supplemental instructor-led online training sessions for each MarinOne Search and MarinOne Social during the first 120 days of the Initial Term.
  • Renewal Manager.
  • Assigned Customer Engagement Manager during the onboarding phase (first 120 days of the Initial Term maximum).
Standard
  • Unlimited Integration Projects from Marin Certified Integrations.
  • Historical Search Revenue Data: 1 included, (must be included in the Order Form).
  • One Marin Social Revenue Integration: Publisher tracking.
  • One Marin Social Integration equal to a Marin Search data source.
  • Additional Marin Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form).
  • Training courses are available via self-paced online video content, Marin Live programs, and Marin University.
  • Unlimited Marin Certifications.
  • Up to three hours of supplemental instructor-led remote training sessions for each Marin Search and Marin Social during the first 120-days of the Initial Term.
  • Assigned Customer Success Manager.
  • Assigned Customer Engagement Manager for the onboarding phase (first 120 days of the Initial Term maximum).
Advanced
  • Unlimited Integration Projects from Marin Certified Integrations.
  • Historical Search Revenue Data: 1 included, (must be included in the Order Form).
  • One Marin Social Revenue Integration: Publisher Tracking.
  • One Marin Social Integration equal to a Marin Search data source.
  • Additional Marin Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form).
  • Training courses are available via self-paced online video content, Marin Live programs, and Marin University.
  • Unlimited Marin Certifications.
  • Up to three hours of supplemental instructor-led remote training sessions for each Marin Search and Marin Social during the first 120-days of the Initial Term.
  • Assigned Customer Success Director.
    Assigned onboarding resource(s) during the onboarding of the Subscription Services.
  • Assigned Customer Engagement resource for Marin Search.
  • Assigned Customer Engagement resource for Marin Social if Social Spend is greater than $100,000 monthly.
Premium
  • Unlimited Integration Projects from Marin Certified Integrations.
  • Historical Search Revenue Data: 1 included, (must be included in the Order Form).
  • One Marin Social Revenue Integration: Publisher Tracking,
  • One Marin Social Integration equal to a Marin Search data source.
  • Additional Marin Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form).
  • Training courses are available via self-paced online video content, Marin Live programs, and Marin University.
  • Unlimited Marin Certifications.
  • Up to four hours of supplemental instructor-led remote training sessions for each Marin Search and Marin Social during the first 120-days of the Initial Term.
  • Assigned Customer Success Director.
  • Assigned onboarding resource(s) during the onboarding of the Subscription Services.
  • Assigned Customer Engagement resource for Marin Search.
  • Assigned Customer Engagement resource for Marin Social if Social Spend is greater than $100,000 monthly.
Independent Agency Support and Service Levels
Service Packages
Professional Services
Training
Account Support
Mid-market
  • Up to 3 Integration projects from the following: GA, Publisher Tracking, Standard Revenue Upload or Marin Tracker.
  • Unlimited self-service Integrations from the following: GA, Publisher Tracking, Standard Revenue Upload or Marin Tracker.
  • One Marin Social Revenue Integration: Publisher tracking.
  • Additional Integration Projects for an additional fee as defined in the Additional Products & Services Table of the Order Form.
  • Historical Search Revenue Data: 1 included, (must be included in the Order Form)
  • Training courses are available via self-paced online video content, Marin Live programs, and Marin University.
  • Unlimited Marin Certifications.
  • Up to three hours of supplemental instructor-led online training sessions for each Marin Search and Marin Social during the first 120-days of the Initial Term.
  • Renewal Manager.
  • Assigned Customer Engagement Manager during the onboarding phase (first 120 days of the Initial Term maximum).
Standard
  • Up to 5 Integration Projects: Limited to Marin Certified Integrations.
  • Unlimited self-service Certified Integrations.
  • Additional Integration Projects for an additional fee as defined in the Additional Products & Services Table of the Order Form.
  • Historical Search Revenue Data: 1 included, (must be included in the Order Form).
  • One Marin Social Revenue Integration: Publisher Tracking,
  • One Marin Social Integration equal to a Marin Search data source.
  • Additional Marin Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form).
  • Training courses are available via self-paced online video content, Marin Live programs, and Marin University.
  • Unlimited Marin Certifications.
  • Up to three hours of supplemental instructor-led remote training sessions for each Marin Search and Marin Social during the first 120-days of the Initial Term.
  • Assigned Customer Success Manager for the account.
  • Assigned Customer Engagement resource for the first 120 days of the Initial Term.
  • Assigned Onboarding resource(s) during the onboarding of the Subscription Services.
Advanced
  • Included: 10 Integration Projects from Marin Certified Integrations.
  • Unlimited self-service Certified Integrations.
  • Additional Integration Projects for an additional fee as defined in the Additional Products & Services Table of the Order Form.
  • Historical Search Revenue Data: 1 included, (must be included in the Order Form).
  • One Marin Social Revenue Integration: Publisher Tracking,
  • One Marin Social Integration equal to a Marin Search data source.
  • Additional Marin Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form).
  • Training courses are available via self-paced online video content, Marin Live programs, and Marin University.
  • Unlimited Marin Certifications.
  • Up to four hours of supplemental instructor-led online training sessions for each Marin Search and Marin Social during the first 120-days of the Initial Term.
  • Assigned Customer Success Director.
  • Assigned onboarding resource(s) during the onboarding of the Subscription Services.
  • Assigned Customer Engagement resource for Marin Search.
  • Assigned Customer Engagement resource for Marin Social if Social Spend is greater than $100,000 monthly.
Premium
  • Included: 15 Integration Projects from Marin Certified Integrations.
  • Unlimited self-service Certified Integrations.
  • Additional Integration Projects for an additional fee as defined in the Additional Products & Services Table of the Order Form.
  • Historical Search Revenue Data: 1 included, (must be included in the Order Form).
  • One Marin Social Revenue Integration: Publisher Tracking,
  • One Marin Social Integration equal to a Marin Search data source.
  • Additional Marin Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form).
  • Training courses are available via self-paced online video content, Marin Live programs, and Marin University.
  • Unlimited Marin Certifications.
  • Up to four hours of supplemental instructor-led remote training sessions for each Marin Search and Marin Social during the first 120-days of the Initial Term.
  • Assigned Customer Success Director.
  • Assigned onboarding resource(s) during the onboarding of the Subscription Services.
  • Assigned Customer Engagement resource for Marin Search.
  • Assigned Customer Engagement resource for Marin Social if Social Spend is greater than $100,000 monthly.
Support & Services for Marin Social - Managed Services
Service Packages
Professional Services
Communication Frequency
Account Support
Marin Social (Managed Services)

Marin Software will manage the Subscriber’s social media campaigns on Facebook, Twitter, or both working toward Subscriber’s business goals which include the following:

  • Audience creation including: age/gender/geography combinations, interest clusters, lookalikes/WCA/CRM-based custom audiences, inclusions/exclusions.
  • Ad creation and management (excluding ad copy and image creation).
  • One weekly performance report using dashboards based on Subscriber’s Key Performance Indicators.
  • Optimization on all active ads including bidding (CPM, dynamic bidding, manual bidding), audience optimization (adding/removing parts of an existing audience), custom audience exclusions, pausing ads or resuming ads, budget re-allocation).
  • One weekly meeting over conference call or web meeting to review campaign performance and upcoming campaign launches.
  • One weekly update over email to recap any new work or optimization completed.
  • Subscriber will be provided an email alias to communicate with their assigned Marin social media team as well as a phone number for emergency requests outside of business hours.
  • Subscriber is provided with an email alias to use to contact Subscriber’s assigned team of experts at Marin Software.
  • An after hour emergency is defined as an urgent request to pause all or part of the Subscriber’s campaigns due to unforeseen events out of the Subscriber’s or Marin Software’s control.
  • Marin Software will charge Subscriber at a rate of $400 per hour, per resource that Marin Software deploys for after-business hour requests.
Requirements and Dependencies
  • Three months minimum Term.
  • Subscriber provides credit line and/or funding source for all campaigns on all social publishers.
  • Publisher accounts are funded with credit line or insertion order and in good standing with the Publisher.
  • Subscriber provides objective details for new campaigns and all assets at least one business day prior to each campaign’s launch.
  • Marin Software will only launch new campaigns beginning on Monday through close of business on Thursday within Subscribers time zone.
  • Subscriber’s assigned Customer Engagement resource will handle all the implementation and optimization work.
  • Facebook conversion tracking and Website custom audience pixels must be in place on conversion pages.
  • Twitter conversion tracking and audience remarketing pixels must be in place on conversion pages.
  • All pages Subscriber wants to advertise from are linked to business manager.
  • Subscriber must provide all images and video and Ad copy assets to Marin Software for advertisement creation.
  • Subscriber is responsible for providing Marin Software with landing page assets for ads.
  • Subscriber’s business manager account is set up, publisher conversion pixels (Facebook and/or Twitter) are deployed and verified, retargeting pixels are deployed and verified (website custom audience and/or Twitter website tag for remarketing.
  • CRM Custom audience upload/refresh at least 1 time per month
    If Subscriber is an agency, the scope of services and pricing applies to one advertiser and not all advertisers of the agency.
Support & Services for Marin Search - Managed Services
Service Packages
Professional Services
Communication Frequency
Account Support
Marin Search (Managed Services)

Marin Software will manage the Subscriber’s paid search campaigns on Google, Bing, Oath, GDN, Baidu, Yahoo Japan working toward Subscriber’s business goals which include the following:

  • Keyword management and creation
  • Negative Keyword management and creation
  • Ad Copy management and creation
  • Shopping Product Group management and creation
  • Creative and Landing Page testing
  • Optimization on all active campaigns including bidding (dynamic bidding, manual bidding)
  • URL Building and Conversion Tracking Management
  • Weekly performance report using dashboards based on Subscriber’s Key Performance Indicators
  • Bi-weekly meetings, over conference call or web meeting, to review campaign performance and upcoming campaign launches
  • Subscriber will be provided an email alias to communicate with their assigned Marin search customer engagement team as well as a phone number for emergency requests outside of business hours
  • Subscriber is provided with an email alias to use to contact Subscriber’s assigned team of experts at Marin Software as well as a phone number for after-hours emergencies
  • An after hour emergency is defined as an urgent request to pause all or part of the Subscriber’s campaigns due to unforeseen events out of the Subscriber’s or Marin Software’s control
  • Marin Software will charge Subscriber at a rate of $400 per hour, per resource that Marin Software deploys for after-business hour requests
Requirements and Dependencies
  • Subscriber provides credit line and/or funding source for all campaigns on all search publishers
  • Publisher accounts are funded with credit line or insertion order and in good standing
  • Marin Software will only launch new campaigns beginning on Monday through close of business on Thursday Pacific Time Zone
  • Subscriber provides objective details for new campaigns and all assets at least two business days prior to each campaign’s launch
  • Customer Engagement Manager and Subscriber agree on timeline and prioritization plan for upcoming campaign launches and projects. Any subsequent requests or deviations to agreed plan are subject to reprioritization
  • Subscriber agrees not to make any changes to Marin campaigns without alignment with Customer Engagement Manager
  • Subscriber must provide all creative images and video assets to Marin Software for advertisement creation
  • Subscriber is responsible for all pixel implementation
  • Marin Software language requirements limited to English
Support & Services for Marin eCommerce - Managed Services
Service Packages
Professional Services
Communication Frequency
Account Support
Marin eCommerce (Managed Services)

Marin Software will manage the Subscriber’s paid eCommerce campaigns on Amazon, Walmart working toward Subscriber’s business goals which include the following:

  • Configure and optimize ad targets, create feed-based ads, launch text ads with customer provided ad copy
  • Keyword & Product Target management and creation
  • Negative Keyword management and creation
  • Optimization on all active campaigns including bidding, if applicable
  • Weekly performance report using dashboards based on Subscriber’s Key Performance Indicators
  • Bi-Weekly meeting over conference call or web meeting to review campaign performance and upcoming campaign launches
  • Subscriber will be provided an email alias to communicate with their assigned Marin search customer engagement team as well as a phone number for emergency requests outside of business hours
  • Subscriber is provided with an email alias to use to contact Subscriber’s assigned team of experts at Marin Software as well as a phone number for after-hours emergencies
  • An after hour emergency is defined as an urgent request to pause all or part of the Subscriber’s campaigns due to unforeseen events out of the Subscriber’s or Marin Software’s control
  • Marin Software will charge Subscriber at a rate of $400 per hour, per resource that Marin Software deploys for after-business hour requests
Requirements and Dependencies
  • Subscriber provides credit line and/or funding source for all campaigns on all search publishers
  • Publisher accounts are funded with credit line or insertion order and in good standing
  • Marin Software will only launch new campaigns beginning on Monday through close of business on Thursday Pacific Time Zone
  • Subscriber agrees not to make any changes to Marin campaigns without alignment with Customer Engagement Manager
  • Marin Software language requirements limited to English

VI. PRODUCT AND CONFIGURATION DEFINITIONS

Ad Impression Served – means Subscribers Linked Impressions as reported by the Publisher(s).

Amazon Spend – means Subscriber’s Linked advertising spend from Amazon.

BI Connect – Enables Marin Search clients to warehouse their online advertising data for analysis in Business Intelligence tools outside of the Subscription Services. By purchasing BI Connect, Subscriber consents to Marin Software’s sharing of Subscriber’s Subscriber Data with such third party via BI Connect.

Channel Connect – Integrations to Marin Search from third-party Publishers and other channels that may be subject to setup fees.

Conversion Event Types – Discrete categories of user actions that can be captured and reported as conversions. Examples include leads, email captures, newsletter sign-ups, phone calls, price quotes, orders, etc. By configuring Conversion Events Types account administrators can assign how much credit each event is worth in a multi-step customer path.

Data Management Platform – Audience Connect technology and services that enable data collection, management, sharing and analytics on behalf of Subscriber’s first party data.

Data Passback – A nightly file transfer that enables Marin Search clients to warehouse their online advertising data for analysis outside of the Subscription Services. If Subscriber engages Marin Software’s Data Passback service that integrates with a third party, by purchasing Data Passback, Subscriber consents to Marin Software’s sharing of Subscriber’s Subscriber Data with such third party via Data Passback.

Dynamic Campaigns – This service provides transformation of product feed data into Marin-ready format and creation logic that is used to dynamically generate search and product advertising campaigns on Google and Bing.

Feed Engine (MarinOne Social) – Stand-alone offering that provides client-specific tailored development in order to automate the creation at scale of customized ads with specific targeting and processed dynamically from pre-defined internal and external data sources.

Feed Optimization Services/Smart Feed (MarinOne Search & Social) – A stand-alone managed services offering that provides transformation of Subscriber’s product feed data to Marin application-ready format that can be leveraged by included functionality and supported publishers for Marin Search (bidding changes or creative updates), Marin Social (Facebook Dynamic Product Ads) and Marin Display (web and mobile retargeting).

Historical Data – Subscriber’s historical data that may be uploaded, provided that those data meets Marin Search standard revenue upload format.

Integration(s) – a data source that feeds data into the Subscription Services originating from a third-party. Custom Integrations are available for additional fee.

Integration Project – a professional service project where a Marin Software technical resource provides services to connect a Marin Certified Integration into the Subscription Services for Subscriber. This includes any requested re-Integration project(s).

Objects – The number of unique combinations of keywords, placements, match types, and ads across Marin Client Accounts.

Linked, or Link – means the act of linking Publisher, Technology Partner, or revenue accounts into the Subscription Services.

Marin Certifications – Subscriber will have access to the following certifications: "Marin Search", "Marin Social" and "Marin Integration". Each certification is entirely on-demand and Subscriber has unlimited opportunities to take it.

Marin Certified Integration(s) – an Integration that connects to the Subscription Services originating from a Technology Partner and/or Media Partner (listed here) or from Marin Tracker, or standard Revenue Upload.

Marin Client Accounts – The number of instances of client accounts in Marin Search or Marin Social that Subscriber chooses to deploy typically by brand, business unit, or advertiser. Marin Client Accounts are integrated into an aggregated view of a single account in Marin Search, MarinOne, and/or Marin Social.

Marin Connect Partners – Marin Connect Partners are the technology partners described here under the section titled “Technology Partners”.

Marin Platform – means components of the Subscription Services namely Marin Search, Marin Social, and MarinOne.

MarinOne Enhanced Social Audiences – Audiences information and other data services provided to the Subscriber for Custom Segments created and provided by Experian Marketing Solutions, LLC or another third party unrelated to Marin Software.

Platform Fee and Minimum Monthly Fee – The minimum monthly Fee for the Subscription Services as described on the applicable Order Form. The terms “Platform Fee” and “Minimum Monthly Fee” carry the same meaning.

Revenue Integration – Supported Integrations to Marin Search and Marin Social from third-party revenue tracking and analytics applications.

Search Spend - All Linked API and/or Channel Connect advertising spend with Subscriber’s Publishers Linked in the Subscription Services, or, as agreed to by the Parties in writing.

Social Spend – Linked API or Channel Connect spend on Facebook, Twitter, and Instagram. May include other social media platforms as agreed to in writing by the parties.

Standard Revenue Upload – Subscribers that wish to use revenue upload from a non-certified integration partner or from an internal data warehouse system, must have the ability to parse, and report on performance against specific parameters contained in the query strings of your keyword or creative destination URLs.

Exhibit B - Country Schedule

This Exhibit B “Country Schedule” attaches to the Terms of Use and provides terms specifically applicable to Your governing country. If there is a conflict between the Terms of Use and this Country Schedule, this Country Schedule provisions will control regarding the specific provisions listed in under the applicable country designation. The law that is applicable to the Agreement and the courts that have exclusive jurisdiction in relation to any dispute or matter arising out of connected with the Agreement depends upon the entity listed in the signature block of the Terms of Use.

I. European Union (Except Germany)

Subscription Services provided by: Marin Software Incorporated
Law governing the Agreement: Irish law
Courts having exclusive jurisdiction for disputes: Dublin, Ireland

3.4 GDPR Data Processing Addendum

The parties agree that the Marin Software Data Processing Addendum (available at Marin Software Data Processing Addendum (PDF).) is incorporated and made a part of the Agreement and shall apply with respect to the parties processing of Personal Data attaching to residents of the European Union and the United Kingdom.

II. JAPAN

Subscription Services provided by: Marin Software Incorporated
Law governing the Agreement: Japanese law
Courts having exclusive jurisdiction for disputes: Tokyo, Japan

III. Germany

Subscription Services provided by: Marin Software Incorporated
Law governing the Agreement: Germany
Courts having exclusive jurisdiction for disputes: Munich, Germany

3.4 GDPR Data Processing Addendum

The parties agree that the Marin Software Data Processing Addendum (available at Marin Software Data Processing Addendum (PDF).) is incorporated and made a part of the Agreement and shall apply with respect to the parties processing of Personal Data attaching to residents of the European Union and the United Kingdom.

7. WARRANTY

7.1 Warranty for Subscription Services.

Marin Software warrants that during the Term of the Agreement (A) the Subscription Services shall perform materially in accordance with the description of the Subscription Services in Marin Software’s Online Help website at the time when entering into this Agreement, and (B) 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. Marin Software reserves the right to update or change the description of the Subscription Services in Marin Software’s Online Help website and thus the functionality of the Subscription Services from time to time by giving notice to You in writing or by e-mail. You can reject such changes in writing within one month after receipt of the notification. If You do not reject in time, the changes will become effective. Marin Software shall explicitly inform You of this legal consequence together with the notification of the change.

7.2 Notification of Defects.

You must inform Marin Software immediately of any discernible defect of the Subscription Services which occurs during the Term of the Agreement.

7.3 Disclaimer of Warranty by Marin Software.

(A) Marin Software shall have no warranty and liability for defects of the Subscription Services which have already been existent at the commencement of this Agreement in case that Marin Software is not accountable for such defect.

(B) Marin Software shall have no warranty and liability for any claims, losses, or damage caused by errors or omissions in any information provided to Marin Software by You, including, without limitation, Subscriber Data, in connection with the Subscription Services or any actions taken by Marin Software at Your direction.

(C) Marin Software shall have no warranty and 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 that are accessed via links from within the Subscription Services outside the sphere of responsibility of Marin Software.

(D) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, MARIN SOFTWARE DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE AVAILABLE AND UNINTERRUPTED AT ALL TIMES. MARIN SOFTWARE FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MARIN SOFTWARE OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

7.4 No Self-Remedy of Defects.

You must not remedy any defects of the Subscription Services by yourself or by engaging a third party and you may not claim from Marin Software a reimbursement of any resultant expenses.

7.5 Limitation of Claims for Damages.

Any claims for damages or for compensation for expenses under warranty shall be subject to Section 9 (Limitation of Liability).

10. LIMITATION OF LIABILITY

10.1 (A) MARIN SOFTWARE SHALL ONLY BE LIABLE FOR ANY DAMAGE,

REGARDLESS OF THE LEGAL GROUNDS, IF SUCH DAMAGE WAS CAUSED WITH INTENT OR GROSS NEGLIGENCE OR WAS CULPABLY CAUSED BY MARIN SOFTWARE IN CONNECTION WITH A VIOLATION OF LIFE, BODY OR HEALTH, OR IN CASE OF NON-COMPLIANCE WITH A GUARANTEE, OR IF A DEFECT WAS FRAUDULENTLY CONCEALED BY MARIN SOFTWARE.

(B) MARIN SOFTWARE SHALL ALSO BE LIABLE IN THE CASE OF A CULPABLE VIOLATION OF AN ESSENTIAL CONTRACTUAL OBLIGATION OR CARDINAL DUTY, HOWEVER, IN THE EVENT OF AN ESSENTIAL CONTRACTUAL OBLIGATION OR CARDINAL DUTY VIOLATED BY SIMPLE NEGLIGENCE, MARIN SOFTWARE'S LIABILITY SHALL BE LIMITED TO THE TYPICALLY FORESEEABLE DAMAGE. A "CARDINAL DUTY" IN THE SENSE OF THIS PROVISION SHALL BE A DUTY OF MARIN SOFTWARE WHOSE FULFILLMENT ENABLES THE PROPER PERFORMANCE OF THE AGREEMENT, WHOSE INFRINGEMENT JEOPARDIZES ACHIEVING THE PURPOSE OF THE AGREEMENT AND IN WHOSE COMPLIANCE YOU NORMALLY TRUST.

(C) IN THE EVENT OF ANY DAMAGE CAUSED BY GROSS NEGLIGENCE OF MARIN SOFTWARE'S SIMPLE VICARIOUS AGENTS, MARIN SOFTWARE’S LIABILITY SHALL BE LIMITED TO THE TYPICALLY FORESEEABLE DAMAGE.

10.2 EXCEPT IN THOSE EVENTS STATED IN SECTION 9.1(A) ABOVE,

MARIN SOFTWARE’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES SHALL NOT EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE 12 MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

10.3 ANY FURTHER-REACHING LIABILITY ON PART OF MARIN SOFTWARE SHALL BE EXCLUDED.

LIABILITY UNDER THE GERMAN PRODUCT LIABILITY ACT SHALL REMAIN UNAFFECTED.