Emarcom Terms and Conditions
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT (“PLATFORM AGREEMENT”) CAREFULLY BEFORE ACCESSING THE PLATFORM (“PLATFORM”) OF, OR USING ANY OF THE SERVICES (“SERVICES”) OFFERED BY, EMARCOM, INC. (“WE,” “US,” “OUR,” OR “EMARCOM”).
THIS SECTION 1 APPLIES TO YOU IF YOU HAVE A MANAGED ORDER OR DATA LICENSE
A. License. We hereby grant You a limited, non-exclusive, non-assignable, non-transferable and revocable right to access and use Our Platform SOLELY for accessing reporting applicable to You . If You have a Managed Order, You may upload Your Data to our Platform for the sole purpose of targeting Your Ads. Except for the foregoing, You shall not upload, send or store ANY material through Our Platform. You represent and warrant that You either own Your Data or You have all rights, licenses and permissions necessary to provide Your Data to Us for the purpose of targeting Ads.
THIS SECTION 4 APPLIES TO YOU IF YOU HAVE ACCESS TO OUR PLATFORM FOR ANY REASON.
A. Restrictions. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party Our Platform, services, API, and/or the data contained therein, including without limitation, underlying technology, trade secrets, content or information (collectively, “Our Technology”) (or any portion thereof) in any way; (ii) modify, reproduce, adapt, translate Our Technology (or any portion thereof) or make derivative works based upon Our Technology (or any portion thereof), (iii) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from Our Technology (or any portion thereof), (iv) violate any applicable local, state, national and foreign laws, treaties and regulations, including those related to advertising, data privacy, international communications and the transmission of technical or personal data, and all compulsory industry self-regulations, including but not limited to the EU General Data Protection Regulation (“GDPR”), and the California Consumer Privacy Act and its regulations (“CCPA”), each of the foregoing as they may be amended from time to time (“Applicable Laws”) in connection with Your access and use of Our Technology (or any portion thereof) nor use Our Technology for any purpose or in any manner that is unlawful or prohibited by this Platform Agreement, (v) interfere with or disrupt the integrity or performance of the Our Technology (or any portion thereof), including without limitation, the Services, the Platform, the API or the data contained therein, (vi) access Our Platform or APIs by any means other than through the interface that is provided by Us for use in accessing the Platform or APIs, (vii) attempt to gain unauthorized access to Our Technology (or any portion thereof) or its related systems or networks or misrepresent its identity, use or attempt to use any unauthorized identification (including without limitation use of any third party logo, name or other identifier), (viii) use Our Technology (or any portion thereof) for any purpose or in any manner that is unlawful or prohibited by this Platform Agreement, (ix) publicly disseminate information or analysis regarding the performance of the Our Technology, including without limitation, the Platform or APIs, or (x) permit or authorize any party to do any of the foregoing.
B. Account. You have been provided with a password protected account to exercise Your license rights (“Account”). You are responsible for all activity occurring under Your Account. You shall: (i) notify Us immediately of any unauthorized use of any password or Account or any other known or suspected breach of security; and (ii) report to Us immediately and use reasonable efforts to stop immediately any copying or distribution of Our Technology (or any portion thereof) or of any data or content contained in Our Platform through Your Account that is known or suspected by You.
C. Ownership. You acknowledge that You are obtaining only a limited right to access and use Our Technology as set forth, as applicable, and that We or Our suppliers or licensors retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to Our Technology, including the right to continually evolve Our Technology (or any portion thereof). We may freely use any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to Our Technology (or any portion thereof). Our name, Our logo, and the product names associated with Our Technology (or any portion thereof) are trademarks of Ours or third parties, and no right or license is granted to use them. Our Technology shall be deemed to be Our Confidential Information.
D. INDEMNIFICATION. YOU SHALL DEFEND, INDEMNIFY AND HOLD EMARCOM, ITS LICENSORS AND EMARCOM’S SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) (“CLAIMS”) ARISING OUT OF OR IN CONNECTION WITH YOUR BREACH OF YOUR APPLICABLE LICENSE
E. Rejection. We reserve the right for any reason to terminate or suspend Your access (or the access of specific personnel) to Our Platform.
A. Right to Use AGF. In the event Customer elects to use Emarcom’s Addressable Geofencing tool (“AGF”) upon the terms and conditions set forth herein, Emarcom grants Customer the right to access and use the AGF, including the reporting provided by Emarcom to Customer (“Report”) and the data on the Report, for the sole purpose of targeting Customer’s Ads purchased through the Platform and for no other purpose (the “Permitted Purpose”). Customer may access and use the AGF through its Customer’s dashboard. In order to use the AGF, Customer or Emarcom will need to provide and upload physical addresses (“Physical Addresses”) to the AGF. All Physical Addresses shall be in the United States. Emarcom shall compare and attempt to match the Physical Addresses with latitude and longitude coordinates of such Physical Addresses (“Geo Data”) from a third party database and, if a match occurs, Emarcom shall assign such matched Geo Data a randomly generated unique identifier (“Unique Identifier”). Once the Report is provided to Customer, Emarcom shall immediately destroy the Physical Addresses provided by Customer, but shall store the information on the Report (i.e., Geo Data and corresponding Unique Identifiers) for use in targeting Customer’s Ads through the Platform. Emarcom shall have the right to comply with any subpoena or legal request, including for device location data. In no event will Emarcom provide additional identifiers such as Device or Advertising ID associated with the physical address for the purposes of identification of the user. Either Party may terminate Customer’s right to use the AGF at any time. Customer shall defend, indemnify and hold harmless Emarcom, its licensors and each of their parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents from and against any and all claims, costs, damages, losses, liabilities, penalties, fines and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with an unaffiliated third party’s claims or government action for (ii) Customer’s access and use of the AGF, including the Report and/or any use Customer makes of the Report or any data in the Report, (iii) arising from the Customer’s violation of Applicable Laws (as defined in Section 4) or use of the Advertising Services or any materials provided by Emarcom, including the AGF, in a manner not permitted under this Agreement,
C. INDEMNIFICATION. YOU SHALL DEFEND, INDEMNIFY AND HOLD EMARCOM, ITS LICENSORS AND EMARCOM’S SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) (“CLAIMS”) ARISING OUT OF OR IN CONNECTION WITH ANY ADS SUBMITTED UNDER YOUR ACCOUNT, THE LANDING PAGES FOR SUCH ADS AND THE PRODUCTS, GOODS AND SERVICES PROMOTED IN YOUR AD, INCLUDING WITHOUT LIMITATION ANY CLAIMS THAT ANY OF THE FOREGOING (A) INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, (B) CONTAINS HARMFUL CODE, OR (C) VIOLATES APPLICABLE LAWS (AS DEFINED IN SECTION 4).
D. Termination. We reserve the right for any reason to reject Your Ads.
Definition. “Confidential Information” means: (i) Our Technology; and (ii) any of Our business or technical information, including but not limited to any information relating to Our product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how.
Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by You; (ii) is known to You at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by You without use of Our Confidential Information; (iv) You rightfully obtain from a third party without restriction on use or disclosure; or (v) is disclosed with Our prior written approval.
Use and Disclosure Restrictions. You will not use Our Confidential Information except as permitted herein and will not disclose Our Confidential Information to any third party; except as permitted by the IAB Terms for those who have entered into Insertion Orders.
B. LIMITATION OF LIABILITY. IN NO EVENT SHALL WE BE LIABLE HEREUNDER FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. OUR MAXIMUM LIABILITY UNDER THIS PLATFORM AGREEMENT SHALL BE LIMITED TO (A) IN THE CASE OF AN ONLINE ORDER, $100, AND (B) IN THE CASE OF NO ORDER NOR EXECUTED AGREEMENT, $0.
C. INDEMNIFICATION. You shall defend, indemnify and hold Emarcom, its licensors and Emarcom’s subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) (“Claims”) arising out of or in connection with any Claim arising from Your breach of this Platform Agreement or Applicable Laws (as defined in Section 4).
D. Termination. We reserve the right to terminate this Platform Agreement or Your access (or the access of specific personnel) to the Platform for any reason.
E. General. The Agreement , Data Agreement or Online Order Agreement, as applicable to You, is the entire agreement between You and Us on the subject matter herein. We may modify this Platform Agreement at any time and Your continued access of the Platform using Your Account will signify Your acceptance of such modifications. This Platform Agreement will be governed and interpreted in accordance with the laws of the State of Texas without reference to conflicts of laws principles. You agree that any dispute under this Agreement shall be brought in the federal or state courts located in Tarrant County, Texas and You agree to submit to the exclusive jurisdiction of the federal and state courts located in Tarrant County, Texas. No failure of Emarcom to enforce any of its rights under this Platform Agreement will act as a waiver of such rights. Provisions of this Agreement held unenforceable under Applicable Laws (as defined in Section 4) shall be excluded to the minimum extent required to conform to such law and the remainder of the Agreement will remain enforceable. We may assign this Agreement without Your consent and use subcontractors in any manner. You may not assign this Agreement without Our written consent. You and We are independent contractors, and nothing in this Agreement shall be deemed to create a joint venture or partnership. You agree that during the term of this Agreement and for twelve months thereafter, You will not encourage or solicit any employee or consultant to leave the employ of Emarcom; provided that, You shall not be prohibited from employing any such person who contacts You in response to a published general solicitation not specifically targeted at such person.
Non-Circumvention. The Receiving Party shall not at any time without the prior written consent of the Disclosing Party contact, solicit or attempt to solicit or engage in any business deals, arrangements or contracts with the Disclosing Party’s clients, service or product suppliers, directors, shareholders, members, trustees, beneficiaries, associates, agents, advisors, consultants, business associates, partners, investors, employees, and any potential clients even if not yet contracted, 24/7 or in any other way compete with the Disclosing Party or the aforementioned parties or in any way try to the aforementioned parties in any way whatsoever. The Receiving Party shall not directly or indirectly circumvent, avoid, bypass or preclude the Disclosing Party in any transactions that the Receiving Party elects to enter and in any dealings (part, present or future), with any party so introduced to the Receiving Party by the Disclosing Party.
This Platform Agreement incorporates the Data Protection Addendum, including the Standard Contractual Clauses attached thereto, when the GDPR applies to Your use of Our Services and Platform to process EU Personal Data (as defined in the DPA). The DPA is effective as of November 1, 2020 and replaces and supersedes any previously agreed data processing addendum between You and Emarcom. For clarity, the DPA supplements this Platform Agreement.
You agree that Emarcom is acting as a Service Provider in relation to the services it provides to You pursuant to the Agreement,. To the extent that Emarcom processes Personal Information, Emarcom warrants and represents that it shall not Process, retain, use, sell, or disclose Personal Information for any purpose other than for the specific purpose of performing the services specified in the Agreement or as otherwise permitted by the CCPA. All capitalized terms in this section shall have the same meanings as defined in the CCPA.
You may allow Your Third Party Reporting Provider to access, on Your behalf, Our API is provided to You for the sole purpose of accessing the Services in order to access, use and report on Your campaign data and such access and use of the API, the Platform and the Services shall be in accordance with the provisions of Your Agreement and subject to the confidentiality provisions therein. All actions or omissions of such Third Party Reporting Provider shall be deemed to be Your actions or omissions and You shall be responsible and liable for them. As used herein, “Third Party Reporting Provider” means a company engaged by You to provide reporting on advertising campaigns that has been prior approved by Our CEO, CFO, CRO or CTO in writing (email to suffice). You shall defend, indemnify and hold harmless Us, Our licensors and each of Our or their parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any acts or omissions of Your Third Party Reporting Provider.
Last Revised August 2022