Date Last Updated: 01 February 2015
1. SUBSCRIPTION SERVICES
1.1 Subscription Services.
(A) The Subscription Services are intended solely for persons who are 18 years or older. Any access to, or use of the Subscription Services by anyone under 18 years old is expressly prohibited. By accessing or using the Subscription Services, You represent and warrant that You and Your Authorized Users (as defined below) are 18 or older.
(A) You shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. You shall not: (i) copy, modify, distribute, resell or rent any portion of the Subscription Services; (ii) disassemble, decompile or reverse engineer the Subscription Services or allow any third party to do so, except to the extent expressly permitted by applicable mandatory copyright law; (iii) make the Subscription Services available to third parties or communicate the Subscription Services to the public by wire or wireless means, including the making available to the public in such a way that members of the public may access the Subscription Services from a place and at a time individually chosen by them, or (iv) transfer any of Your rights hereunder to any third party, except in connection with a permitted assignment of this Agreement.
(B) 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 1.2.
(C) 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 knowingly 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.
1.3 Data Security and Storage.
Marin Software shall maintain appropriate security practices to store the Subscriber Data. 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. Marin Software shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Subscriber Data caused by any third party outside the sphere of responsibility of Marin Software. MARIN SOFTWARE’S EFFORTS TO RESTORE LOST OR CORRUPTED SUBSCRIBER DATA PURSUANT TO THIS SECTION 1.3 SHALL CONSTITUTE MARIN SOFTWARE’S WARRANTY IN THE EVENT OF ANY LOSS OR CORRUPTION OF SUBSCRIBER DATA. Any further reaching claims for damages in the event of any loss or corruption of Subscriber Data shall be subject to Section 9. Marin Software reserves the right to establish or modify its general practices relating to storage of Subscriber Data.
2. YOUR OBLIGATIONS
2.1 Marketing Support.
During the Term, You grant Marin Software the right to (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, the content of which, Marin Software and You shall mutually approve in advance. 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.
You are responsible for Your and Your Authorized Users’ use of the Subscription Services. 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. 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.
2.4 Telecommunications and Internet Services.
You acknowledge and agree that the use of the Subscription Services by You and by any Authorized Users is dependent upon access to telecommunications and Internet services, which You must acquire and maintain at Your own cost and expense, 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 loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services outside the sphere of responsibility of Marin Software.
2.5 Third Party Interactions.
During Your use of the Subscription Services, You or Your Authorized Users may maintain accounts with Publishers that may be accessed via the Subscription Services. 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.
(A) In consideration for Marin Software providing the Subscription Services, You shall pay to Marin Software all the applicable Fees, as provided for in the Order Form, 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. All Fees shall commence on the first day of the Term as specified in the Order Form. Marin Software will either invoice You for the monthly minimum Fees or the Fees calculated from the percent of spend rate if media activity is Linked to the Subscription Services. Monthly minimum Fees will be due if You make no use of the Subscription Services during a particular month or if Your use of the Subscription Services does not meet the usage minimum specified in the Order Form.
(B) If You incur third party API costs through Your use of the Subscription Services and such API costs are billed to Marin Software by the Publishers or API providers as a result, Marin Software will invoice You all such API costs at no additional mark up and You agree to pay Marin Software for such API costs.
(C) You agree to provide Marin Software with complete and accurate billing and contact information in the Order Form.
(D) 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 in its sole discretion reserves the right (i) to bill You in advance for the minimum monthly Fees as specified in the Order Form and to bill You at the end of each month for any Fees in excess of the minimum Fee or (ii) to provide You with a single invoice at the end of each month for all Fees. Each invoice is due and payable 30 days following the invoice date (subject to credit approval). If You believe that Your invoice is incorrect, You must contact Marin Software in writing within 10 days of the invoice date and describe (in reasonable detail) the amount of the disputed charges and the reason for Your disagreement. If Marin Software has not received payment on the due date, default interest shall accrue on past due amounts at the statutory default interest rate. 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 overdue, in addition to any of its other rights or remedies, Marin Software reserves the right to suspend the Subscription Services provided to You, without liability to You, until such amounts are paid in full.
(E) 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).
(F) 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. All pricing terms other than those publicly disclosed on Marin Software’s website are confidential, and You agree not to disclose them to any third party.
4. PROPRIETARY RIGHTS
(A) Subject to the limited rights expressly granted to You 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. All rights not expressly granted to You are reserved by Marin Software.
(B) 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.
(C) You shall exclusively own all rights, title and interest in and to all Subscriber Data. You hereby grant to Marin Software a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term of this Agreement and for the follow-on period described in Section 7.3(B) to use, store and transmit Your Subscriber Data and to disclose Your Subscriber Data to Publishers for the purpose of providing the Subscription Services to You.
5.1 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 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. 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.
5.2 Use and Nondisclosure.
During the Term and for a period of three years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. You understand and agree that Marin Software will 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 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 pursuant to Section 7.3, and shall have no other obligation to You regarding such Subscriber Data under this Agreement.
6.1 Warranty for Subscription Services.
Marin Software warrants that during the Term of the Agreement (i) 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 (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. 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.
6.2 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.
6.3 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 6.1, 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.
6.4 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.
6.5 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).
7. TERM AND TERMINATION
7.2 Termination for Cause / Termination of an Account.
Either party may terminate this Agreement for cause upon written notice (i) if the other party materially breaches this Agreement and fails to correct the breach within 10 days following written notice specifying the breach, (ii) if there is an adjudication of insolvency of any party under any applicable insolvency law, or (iii) if an insolvency administrator for the assets of the other party is appointed or the other party makes any general assignment for the benefit of its creditors. Marin Software may also terminate this Agreement if You are in default with payment of the Fees or a substantial part of the Fees for two consecutive months or in a total amount which comes up to the average amount of two monthly fees. In addition, Marin Software may terminate an account for which Marin Software is not charging You a fee at any time in its sole discretion.
7.3 Rights and Obligations Upon Expiration or Termination.
(A) 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.
(B) 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 shall 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, after 30 days from the expiration or termination date.
(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.
(D) Upon expiration or termination of this Agreement, Marin Software shall cease use of Your corporate logo; provided, however, that (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.
Section 3 shall survive any expiration or termination of this Agreement for so long as either of the parties has any rights, duties or obligations thereunder. Sections 4, 5, 6.3-6.5, 7.3, 7.4, 8, 9, 10 and 11 shall survive any expiration or termination of this Agreement.
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 this Agreement or any of the Indemnifying Party’s representations and warranties hereunder. The Indemnified Party will promptly notify the Indemnifying Party of any and all such claims and will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts the Indemnified Party in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement will require the Indemnified Party's written consent (to be granted or withheld at the Indemnified Party’s sole discretion) and the Indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
9. LIMITATION OF LIABILITY
9.1 (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.
9.2 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.
9.3 ANY FURTHER-REACHING LIABILITY ON PART OF MARIN SOFTWARE SHALL BE EXCLUDED. LIABILITY UNDER THE GERMAN PRODUCT LIABILITY ACT SHALL REMAIN UNAFFECTED.
10.1 Governing Law.
This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the Federal Republic of Germany, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
10.2 Place of Jurisdiction.
Exclusive place of jurisdiction for all disputes arising out or in connection with this Agreement shall be Munich (Germany).
The waiver by either party of any default or breach of this Agreement shall be in writing and shall not constitute a waiver of any other or subsequent default or breach.
In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
10.5 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 effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
10.6 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.
10.7 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.
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.
10.9 Entire Agreement.
10.10 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.
This Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument.
The headings in this Agreement are for the convenience of reference only and have no legal effect.
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 firstname.lastname@example.org.
“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.
“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” 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.
“Effective Date” means the date this Agreement is executed by both parties.
“Feedback” means comments, and suggestions for improvements relating to the Subscription Services provided by You to Marin Software.
“Fees” means the subscription fees and other charges specified in the 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.
“Linked to” means the media activity is viewable in the Subscription Services.
“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.
“Publisher(s)” means one or more third parties, who provide You and/or Your Authorized Users with advertising services that may be accessed through the Subscription Services.
“Subscriber Data” means proprietary data (that does not include personal data) and information input or authorized to be input by You or by any Authorized Users into, and stored by, the Subscription Services.
“Subscription Services” means Marin Software’s hosted, online software application, accessible via web browser at the URL www.marinsoftware.com and such 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 in connection with the Subscription Services.
“Term” means the subscription period specified in the Order Form.