These Terms of Service (“Agreement”) describe the terms and conditions under which you (“Client,” “you,” or “your”) may access and use AdRoll’s Services.

BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT CREATION PROCESS, OR USING ADROLL’S SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A THIRD PARTY(IES) (FOR INSTANCE, AS AN ADVERTISING AGENCY ON BEHALF OF A CLIENT OR AS A RESELLER), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND ANY SUCH THIRD PARTY(IES), AND THE TERMS “CLIENT,” “YOU,” OR “YOUR” WILL ALSO REFER TO SUCH THIRD PARTY(IES). ADROLL MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE 30 DAYS AFTER NOTIFICATION WILL CONSTITUTE ACCEPTANCE.

IMPORTANT: BY AGREEING TO THIS AGREEMENT, YOU AGREE TO RESOLVE DISPUTES WITH ADROLL THROUGH BINDING ARBITRATION (AND, WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 15.

1. Definitions

• “Account” means a Client account for access to the Platform.
• “Ad” means any display creative advertisement that is targeted to an end user through the Services.
• “AdRoll API” means AdRoll’s application programming interfaces and the accompanying Documentation, code, and related materials, which are subject to the API license agreement found at https://app.adroll.com/tos.html.
• “AdRoll Materials” means the Platform, AdRoll API, Technology, Documentation, visual interfaces, graphics, design, compilation, computer code, and all other elements of the Service, including related modifications and derivative works.
• “Applicable Law” means any applicable federal, state or foreign laws or regulations or any industry self-regulatory rules or guidelines (including the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the NAI Code of Conduct, the DAA Self-Regulatory Principles for Online Behavioral Advertising, EU Directive 95/46/EC and EU Directive 2002/58/EC) that relate to a party’s obligations under this Agreement.
• “Authorized Resellers” means resellers approved by AdRoll in its sole discretion.
• “Campaign Data” means performance and measurement data made available through the Platform that relates to Client’s Ad campaigns launched through the Services.
• “Client Content” means all logos, trademarks, images, graphics, text, and other materials included by Client in the Ads provided to AdRoll for use with the Services.
• “Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology that are provided by AdRoll to Client.
• “Feedback” means information regarding the features and performance of the Services and Materials, including (without limitation) reports of failures, errors, or other malfunctions that Client encounters through its use of the Services.
• “Insertion Order” means a document executed by both parties that specifies the type of Services to be provided to Client by AdRoll for campaigns, the duration of the Services, a budget, fees, and other details.
• “Managed Account” means a Client account that meets minimum spend requirements, which may be adjusted from time to time.
• “Network” means a group of publishers, ad networks, ad exchanges, and other ad inventory sources that AdRoll has partnered with to provide the Services.
• “Platform” means the AdRoll website, dashboard, and tools that Client has access to through the Services to create, launch, monitor, pause, and stop an Ad campaign.
• “Services” means any AdRoll offering that Client agrees to receive, subject to this Agreement and mutually agreed upon addendums, and, if applicable, in an Insertion Order.
• “SDK” means AdRoll’s software development kit to support its mobile retargeting Ad Services.
• “Service Data” means data (and each component of such data) that is collected by AdRoll from end users using a pixel (or other script or code) installed on Client’s website, an integrated mobile SDK, or other mutually agreed upon means, including any data obtained from third parties while providing the Services. Service Data does not include any user email addresses or other explicitly personally identifiable information provided by Client or Campaign Data. If Client has configured or agreed for AdRoll to implement the pixel (or other script or code) to send hashed user email addresses from Client’s website to AdRoll or has authorized AdRoll to collect and store hashed user email addresses, this data will be Service Data.
• “Technology” means the AdRoll proprietary technology that allows AdRoll to provide the Services, including the AdRoll pixel (or other script or code), the AdRoll API, the SDK, or other mutually agreed upon means.

2. THE ADROLL SERVICE

2.1 The Services. Client may choose to receive any combination of Services available by indicating the same through the Platform or, if applicable, in an Insertion Order.

2.2 AdRoll License Grant. Subject to Client’s payment and the terms set forth in this Agreement, AdRoll grants the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense to Client during the Term: (i) for applicable Services, to access and use the Platform and Documentation solely for Client’s internal business purposes, and solely on Client’s own behalf, in connection with its receipt of the Services; (ii) for web related Services, to integrate the pixel (or other script or code) into Client’s website for web-related Services; (iii) for mobile related Services, to integrate the SDK (in object code form) into Client’s mobile and tablet applications for mobile-related Services, or (iv) to integrate through other mutually agreed upon means (e.g., integration using the AdRoll API).

2.3 Client License Grant. During the Term, Client grants AdRoll a worldwide, royalty-free, non-transferable (except as necessary for AdRoll to provide the Services) license to use, distribute, reproduce, adapt (with respect to sizing or as specifically requested by Client), publicly perform, and publicly display, the Client Content in Ads on the Network or otherwise in connection with the Services and in promotional materials related to the Services. For Clients requesting AdRoll’s dynamic creative advertisement services, Client acknowledges that AdRoll will connect to Client’s website to pull and download images at the explicit direction of Client solely for the purpose of creating Ads.

2.4 Requirements. Client will comply with all requirements for use of the Services communicated by AdRoll to Client via Documentation, and acknowledges that absent such compliance, AdRoll may be unable to provide the Services to Client. Depending on the Services Client chooses to receive, technical requirements may include: (i) including tags, pixels, script, or code supplied by AdRoll on Client’s website; (ii) installing the SDK into Client’s mobile or tablet applications; (iii) supplying appropriate Client Content necessary for AdRoll to provide the Service; and/or (iv) allowing access to data collected by Client’s mobile measurement partner. AdRoll will have no liability to Client for such failure to provide the Services, if failure is a result of Client’s failure to comply with this section 2.4.

2.5 Modifications. AdRoll will host the Services and may update the Services from time to time in accordance with this Agreement. If AdRoll provides Services updates to Client that require action on Client’s part, Client will integrate the updates within 30 days. AdRoll may make changes to the Services (including discontinuation of all or part of the Services) at any time. AdRoll will provide notice to Client of material changes in accordance with this Agreement. If Client does not wish to continue to use the modified Services, Client’s sole remedy is to terminate the Agreement by providing written notice to AdRoll.

2.6 Display of Ads. Client can request to work with AdRoll (including within the Platform where such functionality is available) to manage display preferences when and to the extent such controls are made available to AdRoll. Client acknowledges that AdRoll cannot control where and how often Ads will be displayed within the Network. For instance, Ads may be displayed next to ads of Client’s competitors, or on websites or applications that are undesirable to Client. AdRoll will use commercially reasonable efforts not to display Ads on websites or applications that it determines to be pornographic, defamatory, obscene, or illegal in nature. If Client notifies AdRoll in writing that Ads are being displayed in this manner, AdRoll will use commercially reasonable efforts to prevent Ads from continuing to display in this manner. Client Content must comply with Documentation requirements or AdRoll may be unable to provide the Services with respect to such Client Content.

2.7 Third Party Terms. Certain parts of the Services require the creation of a user account with third parties to provide their products or services on the AdRoll Platform. Client is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. Client agrees that AdRoll may accept certain third party terms and conditions as agent on Client’s behalf where necessary for AdRoll to perform Services requested by Client, for example, terms related to running campaigns on Facebook Website Custom Audiences. Links to or copies of any such terms will be provided upon request.

2.8 Promotions. AdRoll may offer promotions, subject to any terms set out in the applicable Documentation. After the promotion, the campaign will automatically continue as a paid campaign, unless Client stops the campaign as described in the applicable Documentation. Client is responsible for all costs that occur beyond the parameters of the promotion described in the applicable Documentation.

3. AGENCY CLIENTS.

3.1 Authority, Liability, and Direct Relationship. Agencies and Authorized Resellers entering into Services on behalf of their clients represent that they have the authority to act on behalf of such clients with respect to all obligations and representations set forth in this Agreement. Agency and Authorized Reseller accepts responsibility for the actions of its client Accounts and liability for all expenses incurred through the provision of Services to its clients, and assumes responsibility for ensuring compliance with and breach of this Agreement by its clients. Except as otherwise set forth hereunder, Agencies and Authorized Resellers will ensure the performance of their respective customer’s obligations under this Agreement. Agency and Authorized Reseller clients may request at any time that their Account be migrated to another agency or to a direct Client Account with AdRoll and nothing in this Agreement will prevent AdRoll and a customer from entering into a direct relationship. AdRoll reserves the right to reasonably object to any clients at AdRoll’s sole discretion.

3.2 Support and Marketing. AdRoll will provide commercially reasonable support during AdRoll’s normal business hours, but Agency and Authorized Reseller acknowledge that they will be solely responsible for providing support to their clients in connection with such clients’ use of the Services, and are solely responsible for marketing efforts related to the “go to market” lifecycle for Services; provided that any marketing materials prepared and/or used by Agency or Authorized Reseller are in compliance with AdRoll marketing requirements and other Documentation. AdRoll reserves the right to request changes or removal of any Agency or Authorized Reseller materials used to market the Services.

4. ACCOUNT AND CAMPAIGN SETUP

4.1 Account Set Up. Setting up an Account with AdRoll is free of charge. Client will choose login credentials, including a password, for its Account and is responsible for all activities that occur through its Account or with its credentials. Client will use reasonable measures to secure its Account credentials and will promptly notify AdRoll of any breach of security, misuse, or unauthorized use of its Account or credentials.

4.2 Campaign Set Up and Management. Client will use the Platform to manage its receipt of Services, specifically to set campaign budgets and other details, and to review performance. Campaign modifications made using Client’s Account to set up, adjust the budget for, launch, suspend, or stop a campaign are the sole responsibility of Client. Charges incurred because of changes made using Client’s account will be included in Client’s regular bill or invoice. In addition to AdRoll’s optimization services and features, AdRoll may offer Managed Account Services to Client. AdRoll will use commercially reasonable efforts to comply with the budget specified by Client. When Client increases or decreases its budget it may take up to one week for the new authorized budget to take effect.

4.3 Campaign Measurement and Tracking. Unless expressly agreed to in writing by AdRoll, service fees will be based on AdRoll’s measurements and tracking through its own servers using the number of impressions, clicks and other indicators necessary for calculating the fees payable by Client. Client may access these measurements through the Platform.

5. PAYMENT TERMS

5.1 Auto-Prepay Accounts. For prepay accounts, you agree to keep valid payment method information (for example, credit card or PayPal account information) on file in your Account always and AdRoll will pre-charge you weekly for each campaign budget amount as determined by you on the Platform. You authorize AdRoll to charge such amounts using the valid payment details provided by you. You understand that all funds transferred to AdRoll become the property of AdRoll upon transfer to compensate AdRoll for costs involved in delivering the Services, including creating and maintaining, and providing access to the Documentation, Network, Platform, Technology, and Campaign Data. If you suspend a Campaign or cancel Your Account, you may request reimbursement in the amount of the prepaid funds not attributed to any completed Campaign(s) within 180 days after the Campaign is paused or this Agreement is terminated; provided that any such reimbursement is at AdRoll’s sole discretion.

5.2 Auto-Postpay Accounts. For recurring payment accounts, you agree to keep valid payment method information (for example, credit card or PayPal account information) on file in your Account at all times. You authorize AdRoll to charge recurring amounts due weekly using the valid payment details provided by You. AdRoll reserves the right to discontinue the recurring payment services at any time for any reason upon notice. Claims relating to Account charges must be raised by you within 30 days of receipt or will be barred.

5.3 Insertion Order Accounts. AdRoll may, in its sole discretion, allow Client to submit an Insertion Order requesting Services. AdRoll reserves the right to request a prepayment from Client at any time. AdRoll will send Client a monthly invoice via email reflecting the amount owed by Client to AdRoll. Client will pay the amount set out in each invoice, without set-off, within 30 days of its receipt of such invoice. AdRoll may charge interest on overdue amounts, from the due date up to the date of actual payment, whether before or after any judgment, at a monthly rate of 1.5%, or the highest rate permitted by Applicable Law, whichever is less. Client will reimburse AdRoll for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorney’s fees. Claims relating to invoices or Account charges must be raised by Client within 30 days of receipt or will be barred.

5.4 General Payment Terms. You agree that you have all necessary right, power, and authority to authorize each such payment. For certain payment methods, the issuer of your payment method may charge you a foreign transaction fee or other charges. Check with your payment method service provider for details. If you develop credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or AdRoll otherwise designates you as a credit risk, AdRoll reserves the right to require prepayment. You agree to maintain sufficient funds or credit availability in your payment method to satisfy your amounts due and that AdRoll will have no obligation to provide the Services if sufficient funds are not available at the time your payment is submitted, and we reserve the right to suspend your campaigns due to failed payments or insufficient balance.

5.5 Currency and Taxes. All payments to AdRoll will be made in United States Dollars, unless otherwise agreed to in an IO or offered through the Platform. Payments are quoted exclusive of any taxes. Client is responsible for all sales taxes, use taxes, value added taxes, withholding taxes, and any other similar taxes imposed by federal, state local or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon AdRoll’s net income.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 Ownership. AdRoll Materials are the sole and exclusive property of AdRoll or its third-party licensors as applicable, and are protected by Applicable Law. Client’s rights to the AdRoll Materials are limited to those rights expressly granted in this Agreement and do not include any other licenses. Client Content is the sole and exclusive property of Client or its third-party licensors as applicable and is protected by Applicable Law. AdRoll’s rights to the Client Content is limited to those rights expressly granted in this Agreement and do not include any other licenses.

6.2 Restrictions. Client will not (i) modify the AdRoll Materials or any related proprietary notices; (ii) reverse engineer, decompile, disassemble or interfere with any AdRoll Materials (except where and to the extent such prohibition is not permitted by law); (iii) sublicense, rent, sell, or lease access to the AdRoll Materials, or use the AdRoll Materials to create any other product, service or dataset; (iv) except with respect to Campaign Data, log, capture, or otherwise create any record of any data transmitted to or from the AdRoll Materials; (v) deliver any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the AdRoll Materials; (vi) use the Platform for any purpose other than using the Services for its intended purpose, which does not include creating or supplementing user profiles with targetable interests, user movement profiles, site-specific retargeting, and product-interest information outside of the Services; (vii) make or publish any representations or warranties on behalf of AdRoll concerning the Services or AdRoll Materials without AdRoll’s prior written approval. When reproducing AdRoll Materials, Client will include proprietary rights notices contained on the AdRoll Materials.

6.3 Export Control Laws. AdRoll Materials may be subject to United States export control laws, including the U.S. Export Administration Act or other import or export regulations in other countries. Client must comply with all such regulations and is responsible for obtaining any related licenses.

6.4 Feedback. Feedback provided to AdRoll may be used to develop and improve the Service, AdRoll Materials and new products and services. To the maximum extent permitted by law, Client grants AdRoll a nonexclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit Feedback without restriction.

7. DATA RIGHTS, RESTRICTIONS AND PRIVACY

7.1 Service Data and Campaign Data. AdRoll is the sole owner of the Service Data and the Campaign Data and may use either for any purpose allowed by Applicable Law. AdRoll grants Client a nonexclusive, perpetual, irrevocable, royalty-free, fully paid, transferable, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit the Campaign Data in any manner allowed under Applicable Law.

7.2 AdRoll Data Privacy Responsibilities. If and to the extent Service Data or Campaign Data contain any personal data of individuals located in the European Economic Area, AdRoll Advertising Limited in Ireland will be the data controller of such information and will process this data in compliance with Applicable Law. AdRoll will use reasonable efforts to cooperate with Client in responding to regulatory or data subject inquiries received by Client about AdRoll’s collection and processing of the Service Data or Campaign Data containing personal data from individuals located in the European Economic Area.

7.3 Client Data Privacy Responsibilities. Client will comply with all Applicable Laws that relate to individual third party privacy and publicity rights, and will be solely responsible for the operation of all websites and applications owned or operated by Client when Client uses the Services. Client will include clear and conspicuous notice consistent with Applicable Law on its websites, mobile and tablet applications that (i) discloses (and, where legally required, obtains consent to) its practices with regard to cookies, targeting and online behavioral advertising, specifically addressing its data collection, use and disclosure practices (including that by visiting Client’s site third parties may place cookies on end user browsers for this purpose, the types of data that may be collected for targeted advertising, and data collected may be used by third parties to target advertising on other sites or applications based on the end users’ online activity); and (ii) informs users that they may opt-out from receiving targeted advertisements from AdRoll by visiting the NAI website opt-out page here: http://www.networkadvertising.org/choices/ or the DAA opt-out page here: http://www.aboutads.info/ or, for EU users, the EDAA opt-out page here: http://youronlinechoices.eu/. Unless explicitly agreed to by AdRoll, Client will not send personally identifiable information or personal data to AdRoll through the pixel or otherwise.

7.4 ADROLL WILL HAVE NO LIABILITY IN CONNECTION WITH, AND CLIENT SHALL INDEMNIFY, DEFEND AND HOLD ADROLL HARMLESS WITH RESPECT TO: (A) CLIENT’S FAILURE TO PROVIDE NOTICES REQUIRED BY APPLICABLE LAW TO ITS END USERS REGARDING ITS PRIVACY PRACTICES, (B) FOR THE COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT, OR (C) DATA SECURITY OR DATA USE IF ADROLL ACTS AT CUSTOMER’S EXPLICIT DIRECTION.

8. WARRANTIES

8.1 By Client. Client represents and warrants to AdRoll that: (i) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (ii) the Client Content and the Client websites, mobile or tablet applications do not include materials that are obscene, defamatory or contrary to any Applicable Law; (iii) the Client Content does not infringe or misappropriate the rights of any third party; and (iv) the collection, transfer, use and disclosure of Service Data in accordance with this Agreement will not violate the rights of any third party (including any customer of Client) or any statements in its own posted Privacy Notice or similar privacy statement.

8.2 COPPA Compliance. Client represents and warrants that it will not place AdRoll’s pixel on any website that is directed (in whole or in part) to children under the age of thirteen (13), and that it will not knowingly send to AdRoll any information derived from children under the age of thirteen (13).

8.3 By AdRoll. AdRoll represents and warrants that: (i) it has the right to enter this Agreement, to grant all rights granted, and perform its obligations; and (ii) the Technology will perform substantially in accordance with the Documentation. For any breach of this Section 8.3(ii), AdRoll’s sole liability and Client’s sole remedy will be re-performance of the Services by AdRoll or Client’s termination rights under Section 11.

8.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, (I) ADROLL EXPRESSLY DISCLAIMS AND MAKES NO ADDITIONAL REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND (II) THE SERVICES AND MATERIALS MADE AVAILABLE BY ADROLL UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY PROMISE WHATSOEVER. EXCEPT WHERE AND TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY LAW: (A) ADROLL EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, (B) ADROLL DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED, AND (C) ADROLL MAKES NO PROMISE REGARDING THE RESULTS CLIENT WILL OBTAIN THROUGH USE OF THE SERVICES.

9. INDEMNIFICATION

9.1 Client indemnification. Client will defend, indemnify, and hold harmless AdRoll and its officers, directors, employees and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding (i) Client’s breach of this Agreement; and (ii) any violation, infringement or misappropriation of any law or third-party right (including intellectual property, property, privacy or publicity rights) by Client or the Client Content.

9.2 AdRoll Indemnification. AdRoll will defend, indemnify and hold harmless Client and its officers, directors, employees, and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding any violation, infringement or misappropriation of any copyright, trade secret, U.S. patent or trademark by the AdRoll Materials, but excluding any software incorporated into our software under an open source license. In no event, will AdRoll have any liability under this Section 9.2 arising from (a) unauthorized modifications made to the Technology; (b) the Client Content; or (c) the combination of the AdRoll Materials with any third-party software, process, or service not provided by AdRoll. AdRoll’s indemnification obligations in this Section 9.2 will be AdRoll’s sole liability and Client’s sole remedy for any claims that the Services or Materials violate, infringe or misappropriate any intellectual property right.

9.3 Indemnification Process. The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the indemnified party to admit liability requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed, and (ii) the indemnified party may join in the defense with its own counsel at its own expense.

10. LIMITATIONS ON LIABILITY.

10.1 Disclaimer of Indirect Damages. ADROLL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF ADROLL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL ADROLL’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO ADROLL UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

10.3 Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO CLIENT, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. TERM AND TERMINATION

11.1 Term and Termination. Unless otherwise terminated, this Agreement will remain in full force and effect while you use the Services and will terminate upon written notice of cancellation of Client’s Account by AdRoll or Client (“Term”), such termination to take effect 48 hours from receipt of such termination notice (or at such other designated time, at least 48 hours in advance).

11.2 Post-Termination Obligations. Upon termination of this Agreement (i) AdRoll will cease providing the Services and permitting access to the Platform to Client; (ii) Client will within thirty (30) days’ pay to AdRoll any fees that have accrued prior to the effective date of termination; and (iii) Client will remove the AdRoll pixel from its website and AdRoll will not be liable for any damages (or any benefit to AdRoll) resulting from Client’s failure to remove the pixel. Provided Client is not in breach of the Agreement, subject to section 5, AdRoll may refund Client for any amounts prepaid for Services that were not performed prior to termination. The following sections will survive expiration or termination of this Agreement: Sections 1, 6-10, 11.2, 12-13 and 15-16.

11.3 Insolvency. AdRoll may immediately terminate this Agreement and move Client to prepay pursuant to Section 5 in the event that (a) Client (i) fails to satisfy any enforceable, final and material judgment against it, (ii) fails to pay its fees as they become due or (iii) enters into or is the subject of an insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Client’s debts or (b) a court appoints, or Client makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code) for Client or all or substantially all of its assets. Client acknowledges that AdRoll may set off any liability owed to Client against any liability for which AdRoll determines Client is liable to AdRoll related to Services under this Agreement.

12. TRADEMARKS

AdRoll will seek prior authorization from Client for any press release naming Client. Each party retains all right, title and interest to its own logos and trademarks. The AdRoll logos and names are trademarks of AdRoll, Inc. All other trademarks and product or company names mentioned in the Services or AdRoll Materials are the property of their respective owners and may not be used without the prior written permission of the owner. Reference to any products or services by name or otherwise does not imply endorsement by AdRoll. Notwithstanding the foregoing, AdRoll may use Client’s logos and name to indicate in promotional materials that Client is a client of the AdRoll Services. All goodwill derived from the use of any trademarks will inure to the benefit of the respective trademark owner.

13. CONFIDENTIALITY

Confidential Information includes all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that (i) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (ii) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (iii) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (iv) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (a) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 13; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by law) of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 13 will survive termination of this Agreement until the expiration of 3 years from the date of last disclosure. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act.

14. ASSIGNMENT

You may assign this Agreement upon ten (10) days written notice to AdRoll about a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Any other attempt to transfer or assign is void. AdRoll retains the right to assign this Agreement and delegate any or all its obligations hereunder. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

15. RESOLVING DISPUTES – FORUM, ARBITRATION, CLASS ACTION WAIVER, GOVERNING LAW

PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF THE U.S.

15.1 Please contact AdRoll first! AdRoll wants to address your concerns without resorting to formal legal proceedings. Before filing a claim, you agree to try to resolve the dispute informally by contacting AdRoll first through delight@adroll.com.

15.2 Judicial forum for disputes. You and AdRoll agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the federal or state courts of San Francisco County, California, subject to the mandatory arbitration provisions below. You and AdRoll consent to venue and personal jurisdiction in such courts.

U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:

15.3 ARBITRATION

Both Parties Agree to Arbitrate. You and AdRoll agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

Arbitration Procedures. The American Arbitration Association (AAA) (https://www.adr.org) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, or any other location we agree to.

Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. AdRoll will pay all arbitration fees for all customers on a pre-pay plan. AdRoll will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

Exceptions to Agreement to Arbitrate. Either you or AdRoll may assert claims, if they qualify, in small claims court in San Francisco, California or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. Arbitration will not be binding with regards to the AdRoll Materials at AdRoll’s sole discretion. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in San Francisco County, California to resolve your claim.

Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by sending an email within 30 days of first accepting this Agreement to arbitration_optout@adroll.comclearly stating that you wish to opt out of arbitration with AdRoll and include your first and last name, the company for which the account was created, and the email address associated with the account.

15.4 CLASS ACTION WAIVER. Both parties agree to resolve any disputes, claims or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement (such as with respect to their validity or enforceability), the AdRoll Materials, or any services provided by AdRoll will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.

15.5 Controlling Law. This Agreement is governed by the law of the state of California except for its conflicts of laws principles, unless otherwise required by a mandatory law of any other jurisdiction.

16. MISCELLANEOUS

16.1 Amendments. AdRoll reserves the right to revise this Agreement, and Client’s rights and obligations are at all times subject to the Agreement then posted at AdRoll.com. Client’s continued use of the Service constitutes acceptance. We will also endeavor to notify and give Client an opportunity to review and accept the revisions to the Agreement, which acceptance may be manifested in electronic form (such as through a click-through agreement). However, subject to applicable law, the inability to contact Clients through a valid email address regarding the revised Agreement and obtain express acceptance in no way limits the revised Agreement’s effectiveness and application.

16.2 Independent Parties. AdRoll is an independent contractor and not an agent of Client in the performance of this Agreement. This Agreement is not to be interpreted as evidence of an association, joint venture, partnership, or franchise between the parties. Nothing in this Agreement will be deemed to confer any third-party rights or benefits; there are no third-party beneficiaries (except the indemnitees referenced in Section 9).

16.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding use of the Services and will supersede all prior agreements between the parties whether, written or oral. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.

16.4 Force Majeure. AdRoll will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond AdRoll’s reasonable control.

16.5 Use of Third Parties. Subject to Section 13 AdRoll may use third parties to perform its duties under this Agreement, including to serve advertisements on its behalf.

16.6 Severability. If any portion of this Agreement is held invalid or unenforceable, such invalidity or enforceability will not affect the other provisions of this Agreement, which will remain in full force and effect, and the invalid or unenforceable portion will be given effect to the greatest extent possible.

16.7 Waiver. The failure of a party to require performance of any provision will not affect that party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

16. 8 Third-Party Website Disclaimer. Any links to third-party websites from AdRoll Services does not imply endorsement by AdRoll of any products, services or information presented therein, nor do we guarantee the accuracy of the information contained on them. In addition, since we have no control over the terms of use or privacy practices of third-party websites, you should read and understand those policies carefully.

16.9 Notice. All notices to AdRoll must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), electronic mail, or as otherwise specified by AdRoll. Legal notices to AdRoll must be sent to legalnotices@adroll.com with a copy to AdRoll, Inc., Attn: Legal, 2300 Harrison St, Fl 2, San Francisco, CA 94110, U.S.A. Notices to Client will be sent to the Client Account email address on file and/or posted on the Platform dashboard and are deemed effective when sent or posted.

AdRoll, Inc.
2300 Harrison St, Fl 2
San Francisco CA, 94110
United States
1-877-7-ADROLL