Last modified July 11, 2016
Welcome to Perfect Audience!
Thanks for using our products and services ("Services"). The Services are provided by Perfect Audience and our parent company Marin Software Incorporated which is located at 123 Mission Street, 27 th Floor, San Francisco, CA 94105 USA ("Marin Software, we, us, or Perfect Audience"). By using our Services, you are agreeing to this Terms of Service (“Agreement”). Please read them carefully. By registering and obtaining access to the Services, you accept this Agreement either for yourself or on behalf of your employer, or the entity that is identified as the account holder, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not access or use the Services.
By using the Services in accordance with this Agreement during the term, we grant you a worldwide, limited, non-exclusive, non-transferable, non-sub- licensable right to: (a) access and use the Services, (b) use our pixel on your websites, (c) download and integrate our Software Development Kit (in object code form), and (d) access and use the Participant Data (defined below) solely for the purposes of using the Services for targeted advertising. You agree that immediately upon notification by us, you will immediately stop using any Participant Data to which you have had access.
You must follow the policies made available to you within the Services. Don't misuse our Services. You may not interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct. Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. You may not use content from our Services unless you obtain permission from us or are otherwise permitted by law. This Agreement does not grant you the right to use any branding or logos used in our Services. Don't remove, obscure, or alter any legal notices displayed in or along with our Services.
Our Service integrates your advertisements and other data you input into the Services ("Your Content") with content ("Publisher's Content") provided by others, that is not our content. We will match Your Content with the Publisher's Content, selected by us at our sole discretion, based upon criterion you provide. The Publisher or its designee, however, has the ultimate authority to decide whether or not to accept Your Content for integration with the Publisher Content, and the manner of integration. The Publisher's Content is the sole responsibility of the entity that makes it available. We may review Your Content to determine whether it is illegal or violates our policies, or Publisher policies, and we may remove or refuse to display Your Content that we reasonably believe violates such policies or the law. But that does not necessarily mean that we review Your Content, so please don't assume that we do. Similarly, we do not necessarily review all Publisher's Content to which Your Content may be offered to be integrated. So please do not expect us to have reviewed all Publisher's Content to which we offer Your Content for integration.
We may act as your agent in bidding or purchasing Internet distributed advertising inventory and audience data through advertising exchanges, directly from publishers or from other sellers of online advertising (“Ad Exchanges”). As your agent for this specific purpose you acknowledge and agree that we have the authority to bind you to any and all terms and conditions or other agreements imposed by these Ad Exchanges. Your Content may not include any personally identifiable information that can be used to identify an individual user, for example, IP address, a person's name, home address, email address, or phone number (“PII”).
You will be charged for the advertisements placed, based upon the agreed to metrics, such as CPM, times the number of ads placed, clicks on the ad. You agree to provide a weekly estimated budget for the ad campaign. We will attempt to meet that weekly estimated budget. However, we cannot assure you that we will not go over that budget (over delivery) in any week. Prior to the start of each week, you will be billed for the weekly budget of each of your campaigns, minus any remaining credits from the previous week. You understand that all funds paid to Perfect Audience become the property of Perfect Audience to compensate us for costs involved in planning, hosting, and storing your campaign, account, and related data. Should you pause a campaign or choose to close your account with Perfect Audience, you may request reimbursement of any remaining funds designated for your campaign within 180 days after the campaign is paused or terminated, with such reimbursement subject in all cases to our sole discretion.
Perfect Audience measures, through its servers, the number of impressions and/or clicks and/or other indicators necessary for calculating the charges under this Agreement, and such data shall be included in your invoices or billing remittances. The amount charged to you is a combination of Perfect Audience’s direct Ad Exchange cost and our service fee to act as your agent in publishing your content. As we act as an agent in purchasing advertising inventory through the Ad Exchanges, the direct Ad Exchange costs are not fixed in advance and are subject to fluctuation. Accordingly, your fees are not determined until the completion of our Services, at which point you are charged and the invoice amounts are binding. You may access statistics or indicators upon which our invoice amounts are derived on a daily basis through the Services. Any modifications you make in setting up, budget adjustment, launching, pausing or stopping a campaign are your sole responsibility. Any charges or costs that are a result of changes made by you will be included in your regular bill and/or invoice from us.
All charges and invoices will be based on our measurements and tracking and not based upon those of you or any other party. For accounts that have been set up using a credit card, we pre-charge you on a weekly basis for the weekly budget costs (determined or set by you). Prior to the start of a new week we will charge your credit card for the amount necessary in order to begin the week with a balance equal to the desired weekly campaign spend. You acknowledge and accept that we do not guarantee the budget set up will be reached. You shall pay the amounts set out in the invoices within 30 days of the date of the invoice.
You agree to pre-pay the full amount for the anticipated advertisement campaign using our Services before the start of the campaign. The amount for the Services is based upon the amount you proposed for your advertisement campaign, and accepted by us. You may pay for the Services using a credit card or other banking or financial account. We will charge your credit card or other banking or financial account, weekly for the actual ads placed, based upon the agreed to metrics and the number of ads for the preceding two weeks. You authorize us to deduct that amount from your credit card or other banking or financial account. We do not store information regarding the account information for your credit card or banking or financial account, once we have processed the transaction. However, for your convenience, we have arranged with a third party to store your credit card account information or other banking or financial account information for any subsequent purchases for our Services. You agree that neither Marin Software, nor its parent, subsidiaries and affiliates and respective directors, officers and employees, shall have any liability, damages or expenses, arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding based upon any claim that is the result of the third party's storage of such information.
You will need a Perfect Audience Account in order to use our Services. You may create your own Perfect Audience Account, or your Perfect Audience Account may be assigned to you by an administrator, such as your employer. If you are using a Perfect Audience Account assigned to you by an administrator, different or additional terms may apply and your administrator may be able to access or disable your account.
Our Services allow you to submit Your Content to be embedded in the Publisher's Content and to collect and submit data to be included in our data aggregation platform (“Participant Data”). You retain ownership of any intellectual property rights that you hold in Your Content. In short, what you created and belongs to you stays yours.
When you upload or otherwise submit Your Content to our Services, you give Marin Software (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that Your Content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. You also agree that Marin Software may use your trademark or logo on its website or other locations, for the limited purpose of providing notice to its publishers of the availability of advertisements from you to be inserted in their publications.
You grant Marin Software the right to access and use the Participant Data and data derived from, stored in, or otherwise related to the cookies set by you, or by us on your behalf, in performance of the Services. You also grant to other participants in the Services the right use and benefit from the Participant Data solely through the use of the Services to run advertising campaigns. No cookie ID data or any other personally identifiable data is included in the Participant Data that may be accessed by, or shared with any participant.
You also grant Marin Software the rights to access, use, and disclose data related to your use of the Services so long as any disclosure of such data does not individually identify you, your end-users, or your customers. You understand and agree that Marin Software is not required to disclose to you or any other customer the source of any Participant Data.
We rely on you to have all necessary legal rights to Your Content and the Participant Data that you provide to us. Make sure you have the necessary rights to grant us the license for to use Your Content and the Participant Data in the Services. You agree to defend, indemnify and hold harmless Marin Software, its parent, subsidiaries and affiliates and respective directors, officers and employees, its suppliers, distributors, and publishers, from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding based upon any claim that is a breach of the license granted herein.
All customers receive a unique referral link in their accounts that can be shared with friends and colleagues. People who visit our service using one of these links will receive a $120 free trial campaign credit as opposed to the standard $100 free trial campaign credit. If a customer attaches a valid PayPal e-mail address to their referral page in the Services, and if they refer customers using their link, and those customers spend money beyond their free trial campaign, we will pay the referring customer 5% of what's spent by those referred customers during the first 12 months after they complete their free trial. This program can not be used for self-referrals or anything resembling a self-referral.
We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether. You can elect to stop using our Services anytime and it will be effective seven (7) days after you provide us with written notice or as indicated through our product. However, you will still be liable for ads that have been distributed after the date you provide us with the written notice but prior to the effective date. Marin Software may also stop providing Services to you, or add or create new limits to our Services at any time.
We provide our Services using a commercially reasonable level of skill and care. But there are certain things that we don't promise about our Services.
OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT OR ADDITIONAL TERMS, NEITHER MARIN SOFTWARE NOR ITS SUPPLIERS, LICENSORS, DISTRIBUTORS, OR PUBLISHERS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON'T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTION OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES "AS IS" WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DISCLAIM ALL WARRANTIES. MARIN SOFTWARE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE IS WITH YOU.
Because Ad Exchanges may require that we bind you to their terms and conditions (“Ad Exchange Term and Conditions”) to which we must bind ourselves in order to provide the Service to you, you hereby agree to defend, indemnify and hold harmless Marin Software, and each Ad Exchange and its partners, agents, affiliates and licensors from any third party claim or liability arising out of or related to Your Content, ad trafficking decisions and targeting decisions, properties to which Your Content directs views (e.g. landing pages) and the redirect (e.g. URLs), services and products you advertise, or your breach of any Ad Exchange Terms and Conditions.
WHEN PERMITTED BY LAW, MARIN SOFTWARE AND MARIN SOFTWARE'S, LICENSORS, SUPPLIERS, DISTRIBUTORS AND PUBLISHERS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, LOST OR CORRUPTED DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF MARIN SOFTWARE, AND ITS LICENSORS, SUPPLIERS, DISTRIBUTORS AND PUBLISHERS, FOR ANY CLAIM UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU ARE CHARGED TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICES AGAIN). IN ALL CASES, MARIN SOFTWARE, AND ITS SUPPLIERS, DISTRIBUTORS AND PUBLISHERS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
If you are using our Services on behalf of a business (“Your Customer”), Your Customer accepts and agrees to be bound by this Agreement. Your Customer will hold harmless and indemnify Marin Software and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys' fees.
We may modify this Agreement or any additional terms that apply to a Service, for example, reflect changes to the law or changes to our Services. You should look at this Agreement regularly. We'll post notice of modifications to these terms on this page by updating the effective date above. Changes will not apply retroactively and will become effective no sooner than ten (10) days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service. If you continue to use our Services for more than 30 days after we post changes or updates, you will be bound by the changed or updated terms even if you don’t agree with them.
If there is a conflict between this Agreement and any additional terms, the additional terms will control for that conflict.
These terms control the relationship between Marin Software and you. They do not create any third party beneficiary rights.
Marin Software may assign this Agreement to one of its affiliates (a subsidiary, a parent, or a subsidiary of a parent) or in connection with a change of control. If you do not comply with this Agreement, and we don't take action right away, this doesn't mean that we are giving up any rights that we may have (such as taking action in the future).
If it turns out that a particular term is not enforceable, this will not affect any other terms of this Agreement.
You and Marin Software agree to comply with all applicable laws including any export regulations of the United States.
The laws of California, U.S.A., excluding California's conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of California, USA, and you and Marin Software consent to personal jurisdiction in those courts.
Email legal@marinsoftware for additional information about this Agreement.