Terms of Service
AdRoll Group Terms of Service
Effective: June 4, 2019
To see our prior terms of service, click here
These Terms of Service together with any applicable Insertion Order(s) and/or Product Addendum(s), (collectively, the “Agreement”) describe the terms and conditions under which you (“Client”) may access and use the Services of AdRoll, Inc. d/b/a AdRoll Group (“AdRoll Group”).
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT CREATION PROCESS, USING ADROLL GROUP’S SERVICES, OR CONTINUING TO USE THIS WEBSITE, CLIENT AGREES TO BE BOUND BY THIS AGREEMENT.
IF CLIENT IS AN AGENCY OR A PARTY ENTERING INTO THIS AGREEMENT ON BEHALF OF ITS OWN CUSTOMER, THEN CLIENT REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO BIND ITS CUSTOMER, AND AGREES THAT THE TERM “CLIENT” AS USED IN THIS AGREEMENT ALSO REFERS TO THAT CUSTOMER.
ADROLL GROUP MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE AFTER NOTIFICATION OF AN UPDATE WILL CONSTITUTE ACCEPTANCE.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, CLIENT AGREES TO RESOLVE DISPUTES WITH ADROLL GROUP THROUGH BINDING ARBITRATION (AND, WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND CLIENT WAIVES CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 17.
- “Account” means a Client account for access to the Platform.
- "Ad" means any creative advertisement (in any form, including without limitation display, video, email, or TV) that is targeted to an end user through the Services.
- “AdRoll Group API” means AdRoll Group’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 Group Materials” means the Platform, AdRoll Group API, Technology, Documentation, visual interfaces, graphics, design, templates, compilation, computer code, and all other elements of the Service, including related modifications and derivative works. AdRoll Group Materials includes Service Data.
- “Agency” means an advertising agency acting on behalf of a Client.
- “Applicable Law” means any applicable federal, state and foreign laws or regulations or any industry self-regulatory rules or guidelines (including, but not limited to, the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the NAI Code of Conduct, the DAA Self-Regulatory Principles for Online Behavioral Advertising, the General Data Protection Regulation (EU) 2016/679) that relate to a party’s obligations under this Agreement.
- “Authorized Resellers” means resellers approved by AdRoll Group in its sole discretion.
- “Client Content” means all logos, Ads, background images, trademarks, fonts, hex codes, images, graphics, text, audio, video files, product feeds, ad copy (including for use in email campaigns) and other content in any media and format provided by or on behalf of Client or obtained by AdRoll Group for use with the Services. “Client Content” does not include Service Data or Performance Data.
- “Client CRM Data” means any clear email addresses or other CRM data about Client’s end users, customers, or prospective customers provided by Client or obtained by AdRoll Group in connection with the Services. Client CRM Data does not include Service Data.
- “Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology (including those setting forth any technical requirements) that are provided to the Client (whether by email, screen or click-through display, in-person, or any other method) or that are located at https://help.adroll.com/hc and https://www.adrollgroup.com/trust-center.
- "European Territories" mean the European Economic Area and Switzerland. For the purpose of this Agreement, the expression "European Territories" shall continue to include the United Kingdom, even after the United Kingdom leaves the European Economic Area following Brexit.
- “Feedback” means information regarding the features and performance of the Services and AdRoll Group Materials, including (without limitation) reports of failures, errors, bugs, or other malfunctions that Client encounters through its use of the Services.
- “Insertion Order” or “Order Form” means a document executed by both parties that specifies the type of Services to be provided to Client by AdRoll Group, the duration of the Services, a budget, fees, and any other specific details for the Services.
- “Managed Account” means a Client account that AdRoll Group provides support to that meets minimum spend requirements which may be adjusted from time to time at AdRoll Group’s sole discretion.
- “MMP” means mobile measurement platform.
- “Network” means a group of publishers, ad networks, ad exchanges, and other ad inventory sources that AdRoll Group has partnered with to provide the Services.
- “Performance Data” means performance and measurement data made available through the Platform that relates to Client’s Ads, campaigns and use of the Services (whether reported on an aggregated or individual level).
- “Platform” means the AdRoll Group website, dashboard, and tools used by the Client to access any of the Services.
- “Product Addendum” means any Service-specific terms and conditions.
- “Services” means any AdRoll Group offering that Client agrees to receive, subject to this Agreement, any applicable Product Addendum(s), and, if applicable, Insertion Order(s), along with any other documentation provided by AdRoll Group related to the Services. Services also include customer support, troubleshooting, creative advertisement services, and account management services associated with the Services.
- “SDK” means AdRoll Group’s software development kit to support its Services.
- “Service Data” means data (and each component of such data) that is collected by AdRoll Group 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 Client CRM Data or Performance Data. If Client has configured or agreed for AdRoll Group to implement the pixel (or other script or code) to send hashed end user email addresses from Client’s website to AdRoll Group or has authorized AdRoll Group to collect and store hashed end user email addresses, these hashed end user email addresses will be Service Data.
- “Technology” means the AdRoll Group proprietary technology that allows AdRoll Group to provide the Services, including the AdRoll Group pixel (or other script or code), the AdRoll Group API, the SDK, or other mutually agreed upon means.
2. ADROLL GROUP SERVICES
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 or Product Addendum. Unless otherwise indicated or modified in such Insertion Order or Product Addendum, this Agreement will apply to any of those Services.
2.2 AdRoll Group License Grant. Subject to Client’s payment of all applicable fees and the terms set forth in this Agreement, AdRoll Group grants to Client during the term of the Agreement the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense: (a) 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; (b) for web related Services, to integrate the pixel (or other script or code) into Client’s website for web-related Services; (c) for mobile-related Services, to integrate the Client’s MMP, including but not limited to identifying end-users across mobile app and browser channels, and/or (d) to integrate through other mutually agreed upon means (e.g., integration using the AdRoll Group API).
Further, subject to Client’s payment of applicable fees and its adherence to the terms herein, AdRoll Group 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 Performance Data as permitted under Applicable Law.
2.3 Respective License Grants by Client and by AdRoll Group
(a) License to Client Content. Client grants AdRoll Group a non-exclusive, worldwide, royalty-free, sub-licensable and transferable license to access, use, copy, distribute, reproduce, adapt, modify, perform, display, publish, transmit, format, store, and archive the Client Content for the purpose of providing the Services, supporting Client’s use of the Services, and in promotional materials related to the Services. Client agrees that AdRoll Group will retain ownership of its underlying techniques, know-how, templates, and design methods related to Services. Client acknowledges that AdRoll Group will connect to Client’s website to pull and download images at the explicit direction of Client for the purpose of providing Services.
To the extent not already covered by licensing or ownership provisions herein, Client also grants AdRoll Group a non-exclusive, worldwide, royalty-free license to: (a) use, access, copy, transmit, sub-license, index, store, aggregate, and display any information (including Client CRM Data) provided by the Client whether by upload, accessed via an authorization framework or API, transmitted to or entered into on the Platform to perform the Services; and (b) publish, display, and distribute de-identified, aggregated information derived from such information and from Client’s use of the Service for purposes of improving AdRoll Group’s products and Services, and for benchmarking and reporting, provided that any such data is not publicly identified or identifiable as originating with or associated with Client or any individual person.
(b) Cross-Device Services. If Client opts-in to receiving AdRoll Group’s cross-device services in the Platform, Client acknowledges that: (a) such collection and/or usage of hashed email addresses and any other user identifiers will be Service Data; and (b) hashed end-user email addresses and any other user identifier from Client's website will be stored as a persistent part of AdRoll Group’s cross-device graph. Client further agrees that: (a) AdRoll Group may combine such hashed emails or other user identifiers with data or hashed emails or other user identifiers of other participating clients in order to recognize users across devices; and (b) that Client will make the necessary disclosures of these data collection practices in their privacy notice, as required by Applicable Law.
2.4 Beta Versions. From time to time, AdRoll Group may make available for you to try, at your sole discretion, certain functionality related to the Service, which is clearly designated as beta, pilot, or a similar description (each, a "Beta Version"). Beta Versions are intended for evaluation purposes and not for production use, are not supported (i.e. customer or technical support teams), and may be subject to additional terms. AdRoll Group may discontinue Beta Versions at any time in its sole discretion and may never make them generally available. AdRoll Group has no liability for any harm or damage arising out of or in connection with a Beta Version. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), BETA VERSIONS AND TRIALS OF THE SERVICE ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY AND SECTION 11.2 (INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION) DOES NOT APPLY TO BETA VERSIONS OR TRIALS OF THE SERVICE.
2.5 Technical Requirements. Client will comply with all technical requirements for use of the Services communicated by AdRoll Group to Client via Documentation, which may include: (a) including tags, pixels, script, or code supplied by AdRoll Group on Client's website; (b) installing the SDK or integrating with Client’s MMP into Client’s mobile or tablet applications; (c) supplying appropriate Client Content necessary for AdRoll Group to provide the Service; and/or (d) allowing access to data collected by Client’s MMP.
2.6 Modifications. AdRoll Group may make changes to the Services (including discontinuation of all or part of the Services) at any time. AdRoll Group 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 Group.
2.7 Display of Ads. Client can request to work with AdRoll Group (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 Group. Client acknowledges that AdRoll Group has limited control where and how often Ads will be displayed within the Network. Ads may be displayed next to ads of Client’s competitors, or on websites or applications that are undesirable to Client unless Client excludes the website in accordance with applicable Documentation. Client Content must comply with Documentation and advertising policy requirements or AdRoll Group may be unable to provide the Services with respect to such Client Content. AdRoll Group retains the authority to remove any Client Content that it deems to be in violation of this Agreement or Documentation, in its sole discretion. AdRoll Group reserves the right to pause or terminate campaigns at any time that are no longer eligible to run in accordance with such policies or Documentation.
2.8 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 Group Platform. Client is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. AdRoll Group may accept certain third party terms and conditions as agent on Client's behalf where necessary for AdRoll Group to perform Services requested by Client (e.g., terms related to running campaigns on Facebook Website Custom Audiences). AdRoll Group shall have no responsibility or liability in relation to such additional terms. Third party terms are available here: https://help.adroll.com/hc/en-us/articles/360028161551.
2.9 Advertising Policy Guidelines. Client will adhere to the advertising guidelines as set out by AdRoll Group, Applicable Law, or applicable Documentation. Client is responsible for ensuring that Client Content and Client websites are compliant with these policies. AdRoll Group reserves the right to review campaigns and Ads at any given time. Our Network’s policies and self-regulatory bodies’ codes of conduct are constantly being reviewed and updated, and as such, active or approved campaigns may be reviewed to ensure that they comply with current policies, codes, and legal requirements.
3. AGENCY CLIENTS.
3.1 Authority, Liability, and Direct Relationship. Where Client is an Agency or Authorized Reseller entering into Services on behalf of its own customer(s): (a) Client represents that it has the authority to act on behalf of such customers with respect to all obligations and representations set forth in this Agreement; (b) upon request, Client will provide AdRoll Group with written confirmation and (if requested) documentation of the relationship between Client and its customer; (c) upon AdRoll Group’s request, Client will provide AdRoll Group with written confirmation that customer has provided it with funds sufficient to make payments pursuant to the Agreement; (d) Client accepts responsibility for the actions of its customer’s Accounts and liability for all expenses incurred through the provision of Services to its customers, and assumes responsibility for ensuring compliance with and breach of this Agreement by its customers; (e) Client will ensure the performance of its customer’s obligations under this Agreement and will have joint and several liability in respect of its customer’s breach of this Agreement; (f) Client’s customer may request at any time that their Account be migrated to another agency or to a direct Account with AdRoll Group and nothing in this Agreement will prevent AdRoll Group and such customer from entering into a direct relationship; and (g) AdRoll Group reserves the right to object to any customer at AdRoll Group’s sole discretion.
3.2 Support and Marketing. Where Client is an Agency or Authorized Reseller: (a) AdRoll Group will provide commercially reasonable support during AdRoll Group’s normal business hours, but Client acknowledges that they will be solely responsible for providing support to their customers in connection with such customers’ use of the Services; (b) Client is solely responsible for marketing efforts related to the “go to market” life cycle for Services, provided that any marketing materials prepared and/or used by Client are in compliance with AdRoll Group marketing requirements and other Documentation; and (c) AdRoll Group reserves the right to request changes or removal of any Client materials used to market the Services.
4. ACCOUNT AND CAMPAIGN SETUP
4.1 Account Set Up. Setting up an Account with AdRoll Group is free of charge. Client will choose login credentials, including a password, for its Account and Client is responsible for all activities that occur through its Account or with its credentials. Client will secure its Account credentials and will promptly notify AdRoll Group 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. AdRoll Group will use commercially reasonable efforts, in accordance with the Documentation, to comply with the budget specified by Client. When Client increases or decreases its budget it may take up to one (1) week for the new authorized budget to take effect.
4.3 Campaign Measurement and Tracking. Unless expressly agreed to in writing by AdRoll Group, service fees will be based on AdRoll Group'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.
4.4 Campaign Optimization. With notice to the Client, AdRoll Group may optimize towards Client's performance or goals by programmatically using Client Content to create new content (such as Ads, emails, or other necessary marketing materials). AdRoll Group may then insert this new content into Client's active campaigns, or create, change, or pause campaigns on the Client's behalf, subject to Client's budget. In addition to and separate from AdRoll Group's optimization services and features, AdRoll Group may offer Managed Account Services to Client.
5. PAYMENT TERMS
5.1 Auto-Prepay Accounts. For prepay accounts, Client agrees to keep valid payment method information (e.g. credit card or PayPal account information) on file in Client's Account always and AdRoll Group will pre-charge Client weekly for each campaign budget amount as determined by Client on the Platform. Client authorizes AdRoll Group to charge such amounts using the valid payment details provided by Client. Client understands that all funds transferred to AdRoll Group become the property of AdRoll Group upon transfer to compensate AdRoll Group for costs involved in delivering the Services, including creating and maintaining, and providing access to the Documentation, Network, Platform, Technology, and Performance Data. If Client suspends a campaign or cancels Client’s Account, Client may request reimbursement in the amount of the prepaid funds not attributed to any completed campaign(s) within one hundred eighty (180) days after the campaign is paused or this Agreement is terminated, provided that any such reimbursement is at AdRoll Group’s sole discretion. Requests for reimbursement made after one hundred eighty (180) days after the campaign is paused or this Agreement is terminated may not be transacted.
5.2 Auto-Postpay Accounts. For recurring payment accounts, Client agrees to keep valid payment method information (e.g. credit card or PayPal account information) on file in Client's Account at all times. Client authorizes AdRoll Group to charge recurring amounts due weekly using the valid payment details provided by Client. AdRoll Group 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 Client within thirty (30) days of receipt or will be barred.
5.3 Insertion Order Accounts. AdRoll Group may, in its sole discretion, allow Client to submit an Insertion Order requesting Services. AdRoll Group reserves the right to request a prepayment or prepaid retainer from Client at any time. AdRoll Group will send Client a monthly invoice via email reflecting the amount owed by Client to AdRoll Group. Client will pay the amount set out in each invoice, without set-off, within thirty (30) days of its receipt of such invoice. AdRoll Group 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 Group for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorney’s fees and costs of collection. Claims relating to invoices or Account charges must be raised by Client within thirty (30) days of receipt or will be barred.
5.4 Non-Payment. AdRoll Group reserves the right to suspend Client's campaigns due to failed payments or insufficient balance. Further, If Client develops credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or AdRoll Group otherwise designates Client as a credit risk, AdRoll Group reserves the right to require prepayment.
5.5 Currency and Taxes. All payments to AdRoll Group will be made in United States Dollars, unless otherwise agreed to in an Insertion Order 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 Group’s net income.
Each party is responsible for paying any taxes on its income. If Client is required under the laws of a country to pay withholding tax in connection with any payment made to AdRoll Group under this Agreement, such amount shall be deducted from the payment to be made, provided that AdRoll Group can use such withholding tax credit to reduce its own income tax liabilities. Also, Client shall promptly furnish AdRoll Group with original receipts for payment of withholding tax, and if such original receipts are not so provided, the withholding tax associated with such receipts cannot be used to reduce any payment due to AdRoll Group under this Agreement. If a particular withholding tax payment cannot be used to reduce AdRoll Group’s own income tax liabilities, or Client has not promptly furnished AdRoll Group with an original receipt for a particular withholding tax payment, such withholding tax payment shall not be used to reduce any payment due to AdRoll Group under this Agreement, and if Client has so reduced a payment, Client shall pay AdRoll Group the difference between the payment amount initially due and the reduced payment amount on AdRoll Group’s demand. AdRoll Group and Client will cooperate, and provide each other with all information and documentation that is reasonably necessary to secure a lower rate or elimination of withholding tax under any applicable treaty. Client shall pay all other taxes and charges levied by a government or government agency on any payments made to AdRoll Group under this Agreement, including but not limited to VAT, excise taxes, sales taxes, business taxes, customs duties, tariffs, and other charges, without any right of deduction from payments due to Licensor, and without any right of reimbursement from Licensor. Should AdRoll Group be later assessed a sales tax on services provided to Client, then (notwithstanding AdRoll Group’s initial failure to collect and remit) it may seek reimbursement of such sales tax from Client.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership. AdRoll Group Materials are the sole and exclusive property of AdRoll Group or its third-party licensors, as applicable, and are protected by Applicable Law. Client’s rights to the AdRoll Group Materials are strictly 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 Group’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 agrees it will not: (a) modify the AdRoll Group Materials or any related proprietary notices; (b) reverse engineer, decompile, disassemble or interfere with any AdRoll Group Materials (except where and to the extent such prohibition is not permitted by law); (c) sublicense, rent, sell, or lease access to the AdRoll Group Materials, or use the AdRoll Group Materials to create any other product, service or dataset; (d) except with respect to Performance Data, log, capture, or otherwise create any record of any data transmitted to or from the AdRoll Group Materials; (e) deliver or introduce any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the AdRoll Group Materials; (f) use the Platform for any illegal purposes or any purpose other than using the Services for its intended purpose, which does not include creating or supplementing end user profiles with targetable interests, end user movement profiles, site-specific retargeting, and product-interest information outside of the Services; and (g) make or publish any representations or warranties on behalf of AdRoll Group concerning the Services or AdRoll Group Materials without AdRoll Group’s prior written approval. When reproducing AdRoll Group Materials, Client will include proprietary rights notices contained on the AdRoll Group Materials.
6.3 Export Control Laws. AdRoll Group 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 Group may be used to develop and improve the Service, AdRoll Group Materials, new products, and services. To the maximum extent permitted by law, AdRoll Group owns all right, title and interest to any such Feedback.
7. DATA RIGHTS AND RESTRICTIONS
7.1 Client CRM Data. AdRoll will only use Client CRM Data for the purposes set out in this Agreement and it shall be treated as Client Confidential Information. However, AdRoll Group may disclose Client CRM Data to third parties solely as required to provide Services to Client in accordance with the AdRoll Group Data Protection Addendum. For the purposes of this Agreement and to assist with compliance with Applicable Law, AdRoll Group is a data processor and Client is the data controller of the Client CRM Data and AdRoll Group shall process such Client CRM Data only in accordance with the AdRoll Group Data Protection Addendum.
7.2 Service Data and Performance Data. AdRoll Group is the sole owner of the Service Data and the Performance Data (to the extent Performance Data does not include Client CRM Data) and may use either for any purpose allowed by Applicable Law.
8. CLIENTS’ PRIVACY OBLIGATIONS
8.1 General Obligations With Respect to End User Privacy. Client is responsible for the operation of all websites and applications owned or operated by Client when Client uses the Services. Client agrees to: (i) comply with all Applicable Laws that relate to data protection and individual privacy and publicity rights; (ii) post a publicly-accessible privacy notice on every Client website and mobile app that integrates or uses the Services that discloses in a legally sufficient manner how information (including personal data) is collected through the website or app or both and used by the Client and AdRoll Group, and further discloses its practices with regard to cookies, targeting, and online behavioral advertising (more information found here: https://help.adroll.com/hc/en-us/articles/216104687-Privacy-Notice-Requirements); and (iii) inform end users how they may opt-out from receiving targeted advertisements which may include links to 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 end users located in European Territories, the EDAA opt-out page here: http://youronlinechoices.eu/. Client will only enable AdRoll Group to collect personal data through the pixel in a manner that is consistent with AdRoll Group’s instructions or Documentation.
8.2 Additional Obligations With Respect to End User Privacy in European Territories and Elsewhere. Where the Client’s website attracts end users from European Territories, Client shall deploy an appropriate consent and transparency mechanism on the Client’s website that: (a) obtains any legally-required consents necessary to access or store information on the terminal devices of those end users; (b) maintains a record of the consent obtained; and (c) provides visitors from the European Territories an option to revoke any consent granted in a manner that is no more burdensome than the method utilized to obtain consent. Client may satisfy the foregoing by using a hosting a consent mechanism (which has been provided or approved by AdRoll Group) on its website to obtain end user consent to AdRoll Group and members of its Network placing cookies on end users' browsers.
This obligation shall also apply where the Client’s Site attracts visitors from other territories that require notice and consent mechanisms with respect to the placement of or access to cookies or similar tracking technologies on visitors’ devices under Applicable Law. If Client fails to implement appropriate notice and consent mechanisms that comply with Applicable Law, then AdRoll Group may not be able to perform the Services under this Agreement.
8.3 Additional Obligations With Respect to End User Privacy in California. By or before January 1, 2020, Client agrees to update the Privacy Notice on their website to provide notice to California residents and a link to AdRoll Group’s Privacy Notice that addresses any applicable disclosures, opt-outs or opt-ins, and advises California Residents of their rights as required under the California Consumer Protection Act (“CCPA”).
8.4 Data Protection Addendum. The Parties agree that the AdRoll Group Data Protection Addendum (available at https://www.adrollgroup.com/terms/data-protection) is incorporated by reference into this Agreement in full and shall apply with respect to the Parties’ processing of Client CRM Data, Performance Data, and Service Data.
9.1 By Client. Client represents and warrants to AdRoll Group that: (a) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (b) the Client Content and the Client websites, mobile or tablet applications ("Client Sites") do not include, and do not give access via hyperlinks to any property containing materials that are obscene, defamatory or contrary to any Applicable Law; (c) Client Content and Client Sites comply at all times with the Documentation and Applicable Laws in all jurisdictions where Client Ads and Client Sites are viewed; (d) Client Sites do not display, reference, link to, or endorse any content that violates this Agreement or the Documentation; (e) the Client Content does not infringe or misappropriate the rights of any third party; and (f) the collection, transfer, use and disclosure of Service Data or Client CRM 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.
9.2 By AdRoll Group. AdRoll Group represents that: (a) it has the right to enter this Agreement, to grant all rights granted, and perform its obligations; and (b) the Technology will perform substantially in accordance with the Documentation. For any breach of this Section 9.2, AdRoll Group’s sole liability and Client’s sole remedy will be re-performance of the Services by AdRoll Group or Client’s termination rights under Section 13.1.
9.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS STATED IN THIS SECTION 9, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ADROLL GROUP EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, COMMON LAW OR CUSTOM. THE SERVICES AND MATERIALS MADE AVAILABLE BY ADROLL GROUP 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 GROUP EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT; (B) ADROLL GROUP 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 GROUP MAKES NO PROMISE REGARDING THE RESULTS CLIENT WILL OBTAIN THROUGH THE USE OF THE SERVICES.
9.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY, ADROLL GROUP WILL HAVE NO LIABILITY TO CLIENT IN CONNECTION WITH (A) CLIENT’S FAILURE TO PROVIDE NOTICES TO, OR OBTAIN CONSENTS FROM, ITS END USERS REGARDING ITS PRIVACY PRACTICES OR THE SERVICES DESCRIBED HEREIN WHICH ARE REQUIRED BY APPLICABLE LAW; (B) THE COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT; OR (C) DATA SECURITY OR DATA USE IF ADROLL GROUP ACTS IN ACCORDANCE WITH CLIENT’S INSTRUCTIONS. THE FOREGOING DOES NOT LIMIT ADROLL GROUP’S LIABILITY AS TO ANY END USER WHO IS NOT A CLIENT.
10. DO NOT PUT OUR PIXEL ON A CHILDRENS’ SITE OR COLLECT INFORMATION FROM CHILDREN.
Client represents and warrants that it will not place AdRoll Group’s pixel on any website that is directed (in whole or in part) to, nor knowingly send to AdRoll Group information derived from or permit AdRoll Group to collect information from or read a device or browser in the possession of: (a) any child under the age of sixteen (16) who is a resident of the State of California; (b) any child under the age of sixteen (16) who is located in a European Territory; and (c) in all other cases, any child under the age of thirteen (13).
11.1 Client Indemnification. Client will defend, indemnify, and hold harmless AdRoll Group 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: (a) Client’s use of any services subject to this Agreement, including without limitation regarding Client’s breach of this Agreement; or (b) any violation, infringement, or misappropriation of any law or third party right (including intellectual property, property, privacy or publicity rights) by Client, Client’s own customers (where Client is an Agency or Authorized Reseller), the Client Content or Client CRM Data.
11.2 AdRoll Group Indemnification. AdRoll Group 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 Group Materials, but excluding any software incorporated into AdRoll Group's software under an open source license. In no event, will AdRoll Group have any liability under this Section 11.2 arising from: (a) unauthorized modifications made to the Technology; (b) the Client Content; or (c) the combination of the AdRoll Group Materials with any third-party software, process, or service not provided by AdRoll Group. AdRoll Group’s indemnification obligations in this Section 11.2 will be AdRoll Group’s sole liability and Client’s sole remedy for any claims that the Services or AdRoll Group Materials violate, infringe, or misappropriate any intellectual property right.
11.3 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: (a) any settlement requiring the indemnified party to admit liability or pay any amount (not covered by the indemnifying party) requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed; and (b) the indemnified party may join in the defense with its own counsel at its own expense.
12. LIMITATIONS ON LIABILITY
12.1 Disclaimer of Damages. ADROLL GROUP WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS (WHETHER DIRECT OR INDIRECT) OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF ADROLL GROUP IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL ADROLL GROUP’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO ADROLL GROUP UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
12.3 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 12 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. TERMS AND TERMINATION
13.1 Term and Termination. This Agreement will remain in full force and effect while Client uses the Services and will terminate upon written notice of cancellation of Client’s Account by AdRoll Group or Client, such termination to take effect forty-eight (48) hours from receipt of such termination notice (or at such other designated time, at least forty-eight (48) hours in advance).
13.2 Post-Termination Obligations. Upon termination of this Agreement: (a) AdRoll Group will cease providing the Services and permitting access to the Platform to Client; (b) Client will, within thirty (30) days, pay to AdRoll Group any fees that have accrued prior to the effective date of termination; and (c) Client will remove the AdRoll Group pixel from Client Sites and AdRoll Group will not be liable for any damages (or any benefit to AdRoll Group) resulting from Client’s failure to remove the pixel. Provided Client is not in breach of the Agreement, subject to Section 5, AdRoll Group 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, 2.3, 5 (as applicable), 6, 7, and 9-13, 14 (as applicable), and 15-18.
13.3 Insolvency. AdRoll Group 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 Group may set off any liability owed to Client against any liability for which AdRoll Group determines Client is liable to AdRoll Group related to Services under this Agreement. In the event that an Agency (but not the Agency’s applicable customer) enters into or is the subject of an insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Client’s debts, AdRoll Group shall have the right to notify Client directly in effort to settle outstanding liabilities under this Agreement.
Each party retains all right, title, and interest to its own logos and trademarks. AdRoll Group logos and names are trademarks of AdRoll, Inc. All other trademarks and product or company names mentioned in the Services or AdRoll Group Materials are the property of their respective owners and may not be used without the prior written permission of the owner.
Notwithstanding the foregoing, AdRoll Group may: (a) use Client’s logos, name, and any trade names to indicate in its promotional materials that Client is a client of AdRoll Group; and (b) disclose the name of the Client as required by Applicable Law.
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: (a) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (b) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (c) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (d) 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 15; 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 15 will survive termination of this Agreement until the expiration of three (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.
Client may assign this Agreement upon written notice to AdRoll Group to any acquirer of all or substantially all of its assets or stock, or to a corporate affiliate. Any other attempt to transfer or assign is void. AdRoll Group retains the rights 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.
17. 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.
17.1 Please contact AdRoll Group first! AdRoll Group wants to address Client's concerns without resorting to formal legal proceedings. Before filing a claim, Client agrees to try to resolve the dispute informally by contacting AdRoll Group first through email@example.com or via their allocated Account Manager.
17.2 Judicial forum for disputes. Client and AdRoll Group agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the federal or state courts located in San Francisco County, California, subject to the mandatory arbitration provisions below. Client and AdRoll Group consent to venue and personal jurisdiction in such courts. Notwithstanding the above, we agree that Client alternatively may attend any arbitration proceedings telephonically or videographically, in which case AdRoll Group will do so as well. U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:
17.3 Arbitration. Both Parties Agree to Arbitrate. Client and AdRoll Group 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 (https://www.adr.org/sites/default/files/commercial_rules.pdf). The arbitration will be held in the United States in accordance with the venue specified in Section 17.2.
Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. AdRoll Group will pay all arbitration fees for Client on a pre-pay plan. AdRoll Group will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that Client's claim is frivolous.
Exceptions to Agreement to Arbitrate. Either Client or AdRoll Group may assert claims, if they qualify, in small claims court in San Francisco, California. 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 Group Materials at AdRoll Group’s sole discretion. If the agreement to arbitrate is found not to apply to Client or Client's claim, Client agrees to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California to resolve Client's claim.
Opt Out of Agreement to Arbitrate. Client can decline this agreement to arbitrate by sending an email within thirty (30) days of first accepting this Agreement to firstname.lastname@example.org clearly stating that Client wishes to opt out of arbitration with AdRoll Group and include Client's first and last name, the company for which the account was created, and the email address associated with the account.
17.4 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 Group Materials, or any services provided by AdRoll Group will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
17.5 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.
18.1 Amendments. AdRoll Group reserves the right to revise this Agreement, and Client’s rights and obligations are at all times subject to the Agreement then posted at AdRollGroup.com. Client’s continued use of the Service constitutes acceptance.
18.2 Independent Parties. AdRoll Group is an independent contractor and not an agent of Client in the performance of this Agreement. There are no third-party beneficiaries (except the indemnitees referenced herein).
18.3 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.
18.4 Force Majeure. AdRoll Group will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond AdRoll Group’s reasonable control.
18.5 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.
18.6 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.
18.7 Third-Party Website Disclaimer. Links to third-party websites from AdRoll Group Services do not imply endorsement by AdRoll Group of any products, services or information presented therein, nor does AdRoll Group guarantee the accuracy of the information contained on them.
18.8 Order of Precedence. In the event of a conflict or inconsistency that relates to the subject matter hereof between any of the terms of the following documents, the following order of precedence shall control: (a) Insertion Order or Order Form; (b) Product Addendum; (c) this Agreement. This Agreement and all terms herein are incorporated by reference into any Insertion Order Form, or Product Addendum except as explicitly set forth to the contrary in such document.
18.9 Notice. All notices to AdRoll Group 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 Group. Legal notices to AdRoll Group must be sent to email@example.com with a copy to AdRoll, Inc. dba AdRoll Group, 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.
2300 Harrison St, Fl 2
San Francisco CA, 94110