API LICENSE AGREEMENT
This API License Agreement (“Agreement”) describe the terms and conditions that govern the provision of you and your ("Company") access to and use of the AdRoll API (as defined below) as provided by AdRoll, Inc. d/b/a AdRoll Group, on behalf of itself and its Affiliates (collectively, "AdRoll").
Updated May 16, 2018
1. INTRODUCTION. This Agreement governs the use of AdRoll's application programming interfaces, and the accompanying documentation, code and related materials (collectively, the "AdRoll APIs") that provide Company with the ability to programmatically interface with the AdRoll platform (the "AdRoll Service") as well as other functionality as AdRoll may make available from time to time. Please note that, in addition to the terms of this Agreement, you may also be required to become a party to other contract terms elsewhere on the AdRoll websites, in order to use the AdRoll Service, and certain other agreements that may be presented to you with respect to other elements of the Adroll Service or related opportunities, including those where you click "accept" or "agree" to become a party thereto (each of which are a "Separate Agreement"). The parties hereby acknowledge and agree that all terms and conditions set out in the AdRoll Terms of Service and any applicable addendums apply to Company's use of the AdRoll APIs and are incorporated by reference herein. If there is any conflict between the terms of a Separate Agreement and this Agreement, then this Agreement shall control with respect to your use of the AdRoll APIs and the terms of the Separate Agreement shall take precedence with respect to the subject matter of such Separate Agreement.
2. GRANT OF LICENSE. Subject to Company's full compliance with all the terms and conditions of this Agreement, AdRoll grants Company a limited, non-exclusive, revocable, non-sublicensable, non-transferable license ("License") to use the AdRoll APIs only for the purpose of offering the AdRoll Service to Company's clients through the Company's technology platform ("Company Platform") or for Company’s internal business purposes in connection with the AdRoll Service. No other rights or licenses are granted by AdRoll except as expressly set forth herein.
3. RESTRICTIONS. The License granted in Section 2 is subject to the following restrictions: (a) Company will not attempt to cloak or conceal its identity when requesting authorization to use the AdRoll APIs nor will it use the AdRoll APIs for any reason other than in accordance with the terms and conditions of this Agreement and the Documentation; (b) Company will not transfer, assign, sublicense, sell, rent or lease the AdRoll APIs to any third party; (c) Company will not disassemble, reverse engineer, decompile, modify or alter any part of the AdRoll APIs; (d) Company will not perform any action intended to introduce to AdRoll products or technology any viruses, worms, defects, malware, Trojan horses or any other destructive items; (e) Company will not use the AdRoll APIs for any application that constitutes, promotes or is used in connection with: spyware, adware, or any other malicious programs or code; unsolicited mass distribution of email (spam); hate materials; libelous, defamatory, obscene, abusive or otherwise offensive content; hacking, surveillance or descrambling equipment or services; (f) Company will not use the AdRoll APIs in any manner or for any purpose that violates any law or regulation, or any person's rights, including but not limited to intellectual property rights, privacy or personality rights; (g) Company will not use the AdRoll APIs in any manner that adversely impacts the stability of AdRoll's servers or adversely impacts the behavior of other applications using the AdRoll APIs. Company will use its personal AdRoll user name and password with unique keys issued to you by AdRoll. Company will not share any credential or unique keys information with any person who is not an employee or a contractor of Company who has agreed in writing to be bound by the terms of this Agreement.
4. API COMPLIANCE AND PRODUCT EXPECTATIONS.
(a) SUPPORT. This Agreement, including access or license to the AdRoll APIs, does not entitle Company to any support, upgrades or modifications (collectively, "Support") for the AdRoll APIs. AdRoll may elect to provide Company with Support for the AdRoll APIs, in its sole discretion, and may terminate such Support at any time without notice to Company. Any Support provided by AdRoll shall be subject to the terms of this Agreement and may also be subject to additional terms.
(b) CHANGES TO API. AdRoll may change, suspend, terminate or discontinue any aspect of the AdRoll APIs, including the availability of the AdRoll APIs themselves, at any time without notice.
(c) LIMITING API ACCESS. AdRoll reserves the right to limit the number and/or frequency of the AdRoll APIs requests in its sole discretion. AdRoll may also impose limits that may restrict Company's access to part or all of the AdRoll APIs without notice. AdRoll may post usage limitations at the "Developers" area of its website.
5. INTELLECTUAL PROPERTY. As between AdRoll and Company, the AdRoll APIs, including all intellectual property rights in and to the AdRoll APIs are and shall at all times remain the sole and exclusive property of AdRoll and are protected by applicable intellectual property law and treaties.
(a) No IP Ownership Grant. This Agreement does not include any right for Company to use any trademark, service mark, trade name or any other mark of AdRoll.
(b) Data. Data ownership and usage rights to the data transferred via the AdRoll APIs shall be governed by the terms of the applicable Separate Agreement. Any hashed email addresses collected via the AdRoll API shall be considered Service Data as that term is used in the AdRoll Terms of Service.
6. TERMINATION & EFFECT
(a) This Agreement and all rights to use the AdRoll APIs terminate automatically if: (i) Company violates any of the terms of this Agreement or any Separate Agreement; (ii) AdRoll publicly posts a written notice of termination on http://www.adroll.com; (iii) AdRoll sends Company a written notice of termination for any reason; (iv) AdRoll disables Company's access to the AdRoll APIs; or (v) Company is subject to a dissolution, receivership, liquidation, insolvency, conservatorship, consolidation, reorganization, sale of substantially all of its assets, cessation of business, voluntary or involuntary bankruptcy. Any termination of this Agreement shall also terminate the license granted to Company to use the AdRoll APIs hereunder.
(b) Company hereby agrees that upon any termination of this Agreement, Company shall destroy and remove from all computers, hard drives, networks and other storage media all copies of the AdRoll APIs, and shall so certify to AdRoll that such actions have occurred. AdRoll shall have the right to inspect and audit Company's facilities to confirm the foregoing. Sections 4, 5, 6(b), 7, 8, 10, 11, and 12 shall survive termination of this Agreement.
7. PROPRIETARY INFORMATION. Company acknowledges that, in the course of accessing the AdRoll APIs and exercising its rights under this Agreement, it may obtain confidential information including but not limited to code, proprietary AdRoll APIs, and/or information stored on the developer site ("Proprietary Information"). Such Proprietary Information shall, as between Company and AdRoll, belong solely to AdRoll and shall include, without limitation, the AdRoll APIs (including any and all derivative works and updates thereto), trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and functional specifications, product requirements, problem reports, performance information, software documents and other technical, business, product, marketing and financial information, plans and data. Company hereby acknowledges and agrees that the Proprietary Information and the materials contained thereon constitute and contain valuable information and trade secrets of AdRoll, and embody substantial creative efforts and confidential information, ideas and expressions.
(a) Company agrees (i) to protect Proprietary Information from unauthorized dissemination and use, including AdRoll competitors; (ii) to use Proprietary Information only for the performance of Company's obligations and in connection with the exercise of Company's rights hereunder; (iii) not to disclose any Proprietary Information, or any part or parts thereof, to any of its employees, agents or contractors except to those full-time employees or contractors of Company who are aware of the confidentiality obligations imposed by this Agreement and have entered into written confidentiality agreements with Company which require such employees and/or contractors to comply with confidentiality obligations no less restrictive than the requirements of this Agreement; (iv) not to disclose or otherwise provide to any third party, without the prior written consent of AdRoll, any Proprietary Information or any data or other information produced, obtained or created by Company in connection with Company's access to the AdRoll APIs; and (v) to undertake whatever action is necessary (or authorize AdRoll to do so in the name of Company) to prevent or remedy any breach of Company's confidentiality obligations herein set forth or any other unauthorized disclosure of any Proprietary Information by its current or former employees, agents or contractors. The foregoing restrictions on disclosure and use shall not apply with respect to any Proprietary Information that: (x) was or becomes publicly known through no fault of Company; (y) was known by Company before receipt as evidenced by Company's contemporaneous written records; or (z) becomes known to Company without confidential or proprietary restriction from a source other than AdRoll that does not owe a duty of confidentiality to AdRoll with respect to such Proprietary Information.
(b) Company acknowledges and agrees that, due to the unique nature of AdRoll's Proprietary Information, there can be no adequate remedy at law to compensate AdRoll for the breach of any provision of this Agreement; that any such breach shall allow Company or third parties to compete unfairly with AdRoll resulting in irreparable harm to AdRoll that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, AdRoll shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages), in addition to whatever remedies it may have at law.
8. REPRESENTATIONS AND WARRANTIES
(a) Mutual. Each party hereby represents and warrants to the other party that each party has the power, authority and capacity to execute, deliver and perform its obligations under this Agreement, which constitutes a valid and legally binding agreement enforceable in accordance with its terms. In addition, the person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement on behalf of the Company.
(c) Disclaimer of Other Warranties by AdRoll. THE ADROLL APIs ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADROLL DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE ADROLL APIs, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, ADROLL DISCLAIMS ANY WARRANTY THAT USE OF THE ADROLL APIs BY COMPANY WILL BE UNINTERRUPTED OR ERROR FREE.
9. MODIFICATIONS TO THIS AGREEMENT. AdRoll reserve the right to modify this Agreement in its sole discretion at any time upon notice to Company. Company shall be responsible for reviewing and becoming familiar with any such modification. Company's continued use of the AdRoll APIs following any such modification constitutes Company's acceptance of the terms and conditions of this Agreement as modified. If Company does not agree to the modified terms of this Agreement, Company's sole and exclusive remedy is to terminate this Agreement immediately upon written notice to AdRoll.
10. INDEMNITY. Company agrees to defend, indemnify and hold harmless AdRoll and AdRoll's directors, offers and employees from and against any and all third party claims, losses, liabilities, awards and costs (including reasonable attorneys' fees and expenses) (each, a "Claim") arising out of related to (a) Company's use of the AdRoll APIs not in accordance with this Agreement; (b) any data or emails passed through to AdRoll in connection with Company's use of any AdRoll API; (c) Company's violation of any applicable law 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.; (d) Company's breach of this Agreement; or (e) any violation, infringement or misappropriation of any law or third-party right (including intellectual property, property, privacy or publicity rights) by Company. ADROLL WILL HAVE NO LIABILITY IN CONNECTION WITH, AND COMPANY SHALL INDEMNIFY, DEFEND AND HOLD ADROLL HARMLESS WITH RESPECT TO, COMPANY'S FAILURE TO PROVIDE NOTICES REQUIRED BY APPLICABLE LAW TO ITS END USERS REGARDING ITS PRIVACY PRACTICES OR FOR ADROLL'S COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT.
11. LIMITATION OF 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 EXCEED $100. ADROLL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO COMPANY 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. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER (a) COMPANY BASES ITS CLAIM ON CONTRACT, TORT, STATUTE, OR ANY OTHER LEGAL THEORY, (b) ADROLL KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES, OR (c) THE LIMITED REMEDIES PROVIDED IN THIS SECTION FAIL OF THEIR ESSENTIAL PURPOSE.
12. MISCELLANEOUS. The parties are independent contractors and neither party is the agent, representative, joint venture or partner of the other party. This Agreement may not be assigned by Company without the prior written consent of AdRoll. AdRoll may freely assign this Agreement. Any assignment in violation of the foregoing shall be null and void from the beginning. This Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the State of California applicable to contracts wholly made and to be performed within the State of California.