NextRoll Terms of Service
Effective: September 10, 2019
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 (“Customer”) may access and use the Services of NextRoll, Inc. (“NEXTROLL”).
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT CREATION PROCESS, USING NEXTROLL’S SERVICES, OR CONTINUING TO USE THIS WEBSITE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT.
IF CUSTOMER IS AN AGENCY OR A PARTY ENTERING INTO THIS AGREEMENT ON BEHALF OF ITS OWN CUSTOMER, THEN CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO BIND ITS CUSTOMER, AND AGREES THAT THE TERM “CUSTOMER” AS USED IN THIS AGREEMENT ALSO REFERS TO THAT CUSTOMER.
NEXTROLL MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE AFTER NOTIFICATION OF AN UPDATE WILL CONSTITUTE ACCEPTANCE.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, CUSTOMER AGREES TO RESOLVE DISPUTES WITH NEXTROLL THROUGH BINDING ARBITRATION (AND, WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND CUSTOMER WAIVES CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 17.
- NEXTROLL SERVICES
- AGENCY CUSTOMERS
- ACCOUNT AND CAMPAIGN SETUP
- PAYMENT TERMS
- INTELLECTUAL PROPERTY RIGHTS
- DATA RIGHTS AND RESTRICTIONS
- CUSTOMER'S PRIVACY OBLIGATIONS
- NO CHILDRENS' SITES/INFORMATION
- LIMITATIONS AND LIABILITY
- TERM AND TERMINATION
- RESOLVING DISPUTES
- “Account” means a Customer 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.
- “Agency” means an advertising agency acting on behalf of a Customer.
- “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 NextRoll in its sole discretion.
- "Customer 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 Customer or obtained by NEXTROLL for use with the Services. Customer Content does not include Service Data or Performance Data.
- "Customer CRM Data” means any clear email addresses or other CRM data about Customer’s end users, customers, clients, or prospective buyers provided by Customer or obtained by NextRoll in connection with the Services at the Customer's instruction. Customer 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 Customer (whether by email, screen or click-through display, in-person, or any other method) including those located at https://help.adroll.com/hc and https://www.adroll.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 NextRoll Materials, including (without limitation) reports of failures, errors, bugs, or other malfunctions that Customer 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 Customer by NextRoll, the duration of the Services, a budget, fees, and any other specific details for the Services.
- “Managed Account” means a Customer account that NextRoll provides support to that meets minimum spend requirements which may be adjusted from time to time at NextRoll's sole discretion.
- “MMP” means mobile measurement platform.
- “Network” means a group of publishers, ad networks, ad exchanges, and other ad inventory sources that NextRoll has partnered with to provide the Services.
- "NextRoll API” means NextRoll's application programming interfaces and the accompanying Documentation, code, and related materials, which are subject to the API license agreement found at https://www.nextroll.com/terms/api.
- "NextRoll Materials” means the Platform, NextRoll API, Technology, Documentation, visual interfaces, graphics, design, templates, compilation, computer code, and all other elements of the Service, including related modifications and derivative works. NextRoll Materials includes Service Data.
- “Performance Data” means performance and measurement data made available through the Platform that relates to Customer's Ads, campaigns and use of the Services (whether reported on an aggregated or individual level).
- “Platform” means the NextRoll website, dashboard, and tools used by the Customer to access any of the Services.
- “Product Addendum” means any Service-specific terms and conditions.
- “Services” means any NextRoll offering that Customer 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 NextRoll related to the Services. Services also include customer support, troubleshooting, creative advertisement services, and account management services associated with the Services.
- “SDK” means NextRoll's software development kit to support its Services.
- “Service Data” means data (and each component of such data) that is collected by NextRoll from end users using a pixel (or other script or code) installed on Customer'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 Customer CRM Data or Performance Data. If Customer has configured or agreed for NextRoll to implement the pixel (or other script or code) to send hashed end user email addresses from Customer's website to NextRoll or has authorized NextRoll to collect and store hashed end user email addresses, these hashed end user email addresses will be Service Data.
- “Technology” means the NextRoll proprietary technology that allows NextRoll to provide the Services, including the NextRoll pixel (or other script or code), the NextRoll API, the SDK, or other mutually agreed upon means.
2. NEXTROLL SERVICES
2.1 The Services. Customer 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 NextRoll License Grant. Subject to Customer's payment of all applicable fees and the terms set forth in this Agreement, NextRoll grants to Customer 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 Customer’s internal business purposes, and solely on Customer’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 Customer’s website for web-related Services; (c) for mobile-related Services, to integrate the Customer’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 NextRoll API).
Further, subject to Customer’s payment of applicable fees and its adherence to the terms herein, NextRoll grants Customer 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 Customer and by NextRoll
(a) License to Customer Content. Customer grants NextRoll 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 Customer Content for the purpose of providing the Services, supporting Customer’s use of the Services, and in promotional materials related to the Services. Customer agrees that NextRoll will retain ownership of its underlying techniques, know-how, templates, and design methods related to Services. Customer acknowledges that NextRoll will connect to Customer’s website to pull and download images at the explicit direction of Customer for the purpose of providing Services.
(b) License to CRM Data.To the extent not already covered by licensing or ownership provisions herein, Customer also grants NextRoll a non-exclusive, worldwide, royalty-free license to: (a) use, access, copy, transmit, index, store, aggregate, and display any information, including Customer CRM Data obtained by NextRoll in connection with the Services, that is provided by or to the Customer, whether by upload, accessed via an authorization framework or API, transmitted to or entered into on the Platform, in order to perform the Services; and (b) to use, publish, display, and distribute de-identified, aggregated information derived from such information and from Customer’s use of the Service for purposes of improving NextRoll’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 Customer or any individual person.
(c) Cross-Device Services. If Customer opts-in to receiving NextRoll’s cross-device services in the Platform, Customer acknowledges that: (i) such collection and/or usage of hashed email addresses and any other user identifiers will be Service Data; and (ii) hashed end- user email addresses and any other user identifier from Customer's website will be stored as a persistent part of NextRoll’s cross-device graph. Customer further agrees that: (iii) NextRoll 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 (iv) that Customer will make the necessary disclosures of these data collection practices in their privacy notice, as required by Applicable Law, including by providing appropriate “just-in-time” notices to end-users at the point in time when an end-user provides an email address to Customer in order to disclose that the email will be hashed, stored, and may be combined with other identifiers for cross-device recognition purposes by NextRoll).
2.4 Beta Versions. From time to time, NextRoll may make available for Customer to try, at Customer’s 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. NextRoll may discontinue Beta Versions at any time in its sole discretion and may never make them generally available. NextRoll 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. Customer will comply with all technical requirements for use of the Services communicated by NextRoll to Customer via Documentation, which may include: (a) including tags, pixels, script, or code supplied by NextRoll on Customer's website; (b) installing the SDK or integrating with Customer’s MMP into Customer’s mobile or tablet applications; (c) supplying appropriate Customer Content necessary for NextRoll to provide the Service; and/or (d) allowing access to data collected by Customer’s MMP.
2.6 Modifications. NextRoll may make changes to the Services (including discontinuation of all or part of the Services) at any time. NextRoll will provide notice to Customer of material changes in accordance with this Agreement. If Customer does not wish to continue to use the modified Services, Customer’s sole remedy is to terminate the Agreement by providing written notice to NextRoll.
2.7 Display of Ads. Customer can request to work with NextRoll (including within the Platform where such functionality is available) to manage display preferences when and to the extent such controls are made available to NextRoll. Customer acknowledges that NextRoll has limited control where and how often Ads will be displayed within the Network. Ads may be displayed next to ads of Customer’s competitors, or on websites or applications that are undesirable to Customer unless Customer excludes the website in accordance with applicable Documentation. Customer Content must comply with Documentation and advertising policy requirements or NextRoll may be unable to provide the Services with respect to such Customer Content. NextRoll retains the authority to remove any Customer Content that it deems to be in violation of this Agreement or Documentation, in its sole discretion. NextRoll 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 NextRoll Platform. Customer is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. NextRoll may accept certain third-party terms and conditions as agent on Customer's behalf where necessary for NextRoll to perform Services requested by Customer (e.g., terms related to running campaigns on Facebook Website Custom Audiences). NextRoll 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. Customer will adhere to the advertising guidelines as set out by NextRoll, Applicable Law, or applicable Documentation. Customer is responsible for ensuring that Customer Content and Customer websites are compliant with these policies. NextRoll 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.
2.10 Promotions. NextRoll may offer promotions to Customer, subject to any terms set out in the applicable Documentation or, if applicable, Insertion Order. If Customer accepts the promotion, Customer understands and agrees that after the promotion, the campaign will automatically continue as a paid campaign, unless Customer pauses or completes the campaign as described in the applicable Documentation. Customer is responsible for all campaign costs that occur beyond the parameters of the promotion described in the applicable Documentation.
3. AGENCY CUSTOMERS.
3.1 Authority, Liability, and Direct Relationship. Where Customer is an Agency or Authorized Reseller entering into Services on behalf of its own customer(s): (a) Customer 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, Customer will provide NextRoll with written confirmation and (if requested) documentation of the relationship between Customer and its customers; (c) upon NextRoll’s request, Customer will provide NextRoll with written confirmation that its customer has provided it with funds sufficient to make payments pursuant to the Agreement; (d) Customer accepts responsibility for the actions of its customers’ 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) Customer will ensure the performance of its customers’ obligations under this Agreement, including but not limited to any and all obligations set out in Section 8; and whereby Customer and will have joint and several liability with respect of its customers’ breach of any of the obligations, representations or warranties under this Agreement; (f) Customer’s customer may request at any time that their Account be migrated to another agency or to a direct Account with NextRoll and nothing in this Agreement will prevent NextRoll and such customers from entering into a direct relationship; and (g) NextRoll reserves the right to object to any customer at NextRoll’s sole discretion.
3.2 Support and Marketing. Where Customer is an Agency or Authorized Reseller: (a) NextRoll will provide commercially reasonable support during NextRoll’s normal business hours, but Customer acknowledges that they will be solely responsible for providing support to their customers in connection with such customers’ use of the Services; (b) Customer 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 Customer are in compliance with NextRoll marketing requirements and other Documentation; and (c) NextRoll reserves the right to request changes or removal of any Customer materials used to market the Services.
4. ACCOUNT AND CAMPAIGN SETUP
4.1 Account Set Up. Setting up an Account with NextRoll is free of charge. Customer will choose login credentials, including a password, for its Account and Customer is responsible for all activities that occur through its Account or with its credentials. Customer will secure its Account credentials and will promptly notify NextRoll of any breach of security, misuse, or unauthorized use of its Account or credentials.
4.2 Campaign Set Up and Management. Customer 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 Customer’s Account to set up, adjust the budget for, launch, suspend, or stop a campaign are Customer’s sole responsibility. Charges incurred because of changes made using Customer’s Account will be included in Customer's regular bill or invoice. NextRoll will use commercially reasonable efforts, in accordance with the Documentation, to comply with the budget specified by Customer. When Customer 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 NextRoll, service fees will be based on NextRoll's measurements and tracking through its own servers using the number of impressions, clicks, and other indicators necessary for calculating the fees payable by Customer. Customer may access these measurements through the Platform.
4.4 Campaign Optimization. With notice to the Customer, NextRoll may optimize towards Customer's performance or goals by programmatically using Customer Content to create new content (such as Ads, emails, or other necessary marketing materials). NextRoll may then insert this new content into Customer's active campaigns, or create, change, or pause campaigns on the Customer's behalf, subject to Customer's budget. In addition to and separate from NextRoll's optimization services and features, NextRoll may offer Managed Account Services to Customer.
5. PAYMENT TERMS
5.1 Auto-Prepay Accounts. For prepay accounts, Customer agrees to keep valid payment method information (e.g. credit card or PayPal account information) on file in Customer's Account always and NextRoll will pre-charge Customer weekly for each campaign budget amount as determined by Customer on the Platform. Customer authorizes NextRoll to charge such amounts using the valid payment details provided by Customer. Customer understands that all funds transferred to NextRoll become the property of NextRoll upon transfer to compensate NextRoll for costs involved in delivering the Services, including creating and maintaining, and providing access to the Documentation, Network, Platform, Technology, and Performance Data. If Customer suspends a campaign or cancels Customer’s Account, Customer 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 NextRoll’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. Customer agrees Platform and on-boarding fees are non-cancelable and non-refundable.
5.2 Auto-Postpay Accounts. For recurring payment accounts, Customer agrees to keep valid payment method information (e.g. credit card or PayPal account information) on file in Customer's Account at all times. Customer authorizes NextRoll to charge recurring amounts due weekly using the valid payment details provided by Customer. NextRoll 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 Customer within thirty (30) days of receipt or will be barred. Customer agrees Platform and on-boarding fees are non-cancelable and non- refundable.
5.3 Insertion Order Accounts. NextRoll may, in its sole discretion, allow Customer to submit an Insertion Order requesting Services. NextRoll reserves the right to request a prepayment or prepaid retainer from Customer at any time. NextRoll will send Customer a monthly invoice via email reflecting the amount owed by Customer to NextRoll. Customer will pay the amount set out in each invoice, without set-off, within thirty (30) days of its receipt of such invoice. NextRoll 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. Customer will reimburse NextRoll for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorneys’ fees and costs of collection. Claims relating to invoices or Account charges must be raised by Customer within thirty (30) days of receipt or will be barred. Customer agrees Platform and on-boarding fees are non-cancelable and non-refundable.
5.4 Non-Payment. NextRoll reserves the right to suspend Customer's campaigns due to failed payments or insufficient balance. Further, if Customer develops credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or NextRoll otherwise designates Customer as a credit risk, NextRoll reserves the right to require prepayment.
5.5 Currency and Taxes. All payments to NextRoll 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. Customer 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 NextRoll’s net income.
Each party is responsible for paying any taxes on its income. If Customer is required under the laws of a country to pay withholding tax in connection with any payment made to NextRoll under this Agreement, such amount shall be deducted from the payment to be made, provided that NextRoll can use such withholding tax credit to reduce its own income tax liabilities. Also, Customer shall promptly furnish NextRoll 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 NextRoll under this Agreement. If a particular withholding tax payment cannot be used to reduce NextRoll’s own income tax liabilities, or Customer has not promptly furnished NextRoll with an original receipt for a particular withholding tax payment, such withholding tax payment shall not be used to reduce any payment due to NextRoll under this Agreement, and if Customer has so reduced a payment, Customer shall pay NextRoll the difference between the payment amount initially due and the reduced payment amount on NextRoll’s demand. NextRoll and Customer 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. Customer shall pay all other taxes and charges levied by a government or government agency on any payments made to NextRoll 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 NextRoll be later assessed a sales tax on services provided to Customer, then (notwithstanding NextRoll’s initial failure to collect and remit) it may seek reimbursement of such sales tax from Customer.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership. NextRoll Materials are the sole and exclusive property of NextRoll or its third- party licensors, as applicable, and are protected by Applicable Law. Customer’s rights to the NextRoll Materials are strictly limited to those rights expressly granted in this Agreement and do not include any other licenses. Customer Content is the sole and exclusive property of Customer or its third-party licensors as applicable and is protected by Applicable Law. NextRoll’s rights to the Customer Content is limited to those rights expressly granted in this Agreement and do not include any other licenses.
6.2 Restrictions. Customer agrees it will not: (a) modify the NextRoll Materials or any related proprietary notices; (b) reverse engineer, decompile, disassemble or interfere with any NextRoll Materials (except where and to the extent such prohibition is not permitted by law); (c) sublicense, rent, sell, or lease access to the NextRoll Materials, or use the NextRoll 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 NextRoll Materials; (e) deliver or introduce any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the NextRoll 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 NextRoll concerning the Services or NextRoll Materials without NextRoll’s prior written approval. When reproducing NextRoll Materials, Customer will include proprietary rights notices contained on the NextRoll Materials.
6.3 Export Control Laws. NextRoll 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. Customer must comply with all such regulations and is responsible for obtaining any related licenses.
6.4 Feedback. Feedback provided to NextRoll may be used to develop and improve the Service, NextRoll Materials, new products, and services. To the maximum extent permitted by law, NextRoll owns all right, title and interest to any such Feedback.
7. DATA RIGHTS AND RESTRICTIONS
7.1 Customer CRM Data. NextRoll will only use Customer CRM Data for the purposes set out in this Agreement and it shall be treated as Customer Confidential Information. However, NextRoll may disclose Customer CRM Data to third parties solely as required to provide Services to Customer in accordance with the NextRoll Data Protection Addendum. For the purposes of this Agreement and to assist with compliance with Applicable Law, NextRoll is a data processor and Customer is the data controller of the Customer CRM Data and NextRoll shall process such Customer CRM Data only in accordance with the NextRoll Data Protection Addendum. Customer represents and warrants that it has obtained any and all authorizations and lawful bases for processing (including verifiable consent where necessary) its Customer CRM Data in accordance with all Applicable Laws in order to provide personal data to NextRoll for processing.
7.2 Service Data and Performance Data. NextRoll is the sole owner of the Service Data and the Performance Data (to the extent Performance Data does not include Customer CRM Data) and may use either for any purpose allowed by Applicable Law.
8. CUSTOMERS' PRIVACY OBLIGATIONS
8.1 General Obligations With Respect to End User Privacy. Customer is responsible for the operation of all websites and applications owned or operated by Customer when Customer uses the Services. Customer 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 Customer 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 Customer and NextRoll, and further discloses in its privacy notice its practices with regard to cookies, targeting, and online behavioral advertising (more information can be 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/. Customer further agrees that it will only enable NextRoll to collect personal data through the pixel in a manner that is consistent with NextRoll’s instructions or Documentation.
8.2 Additional Obligations With Respect to End User Privacy in European Territories and Elsewhere. Where the Customer’s website attracts end users from European Territories, Customer shall deploy an appropriate consent and transparency mechanism on the Customer’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. Customer may satisfy the foregoing by using a consent mechanism (which has been provided or approved by NextRoll) on its website to obtain end user consent to NextRoll and members of its Network placing cookies or similar tracking technologies on end users' browsers.
This obligation shall also apply where the Customer’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 Customer fails to implement appropriate notice and consent mechanisms that comply with Applicable Law, then NextRoll may not be able to perform the Services under this Agreement, and Customer, and/or Customer’s customers as applicable, will be in breach of this Agreement.
8.3 Additional Obligations With Respect to End User Privacy in California. By or before January 1, 2020, Customer agrees to update the Privacy Notice on their website to provide notice to California residents and a link to NextRoll’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 NEXTROLL Data Protection Addendum (available at https://www.nextroll.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 Customer. Customer represents and warrants to NextRoll 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 Customer Content and the Customer websites, mobile or tablet applications ("Customer 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) Customer Content and Customer Sites comply at all times with the Documentation and Applicable Law in all jurisdictions where Customer Ads and Customer Sites are viewed; (d) Customer Sites do not display, reference, link to, or endorse any content that violates this Agreement or the Documentation; (e) the Customer Content does not infringe or misappropriate the rights of any third party; (f) the collection, transfer, use and disclosure of Service Data or Customer CRM Data in accordance with this Agreement will not violate the rights of any third party (including any customer of Customer) or any statements in its own posted privacy notice or similar privacy statement; and (g) Customer will not attempt to identify or re-identify any data NextRoll provides to Customer as part of its Services which has been presented to Customer in an anonymous, and/or aggregated fashion.
9.2 By NextRoll. NextRoll 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, NextRoll’s sole liability and Client’s sole remedy will be re-performance of the Services by NextRoll 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, NEXTROLL 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 NEXTROLL UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY PROMISE WHATSOEVER. EXCEPT WHERE AND TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY LAW: (A) NEXTROLL EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND NON- INFRINGEMENT; (B) NEXTROLL DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED; AND (C) NEXTROLL MAKES NO PROMISE REGARDING THE RESULTS CUSTOMER WILL OBTAIN THROUGH THE USE OF THE SERVICES.
9.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEXTROLL WILL HAVE NO LIABILITY TO CUSTOMER IN CONNECTION WITH (A) CUSTOMER’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) CUSTOMER’S COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT; OR (C) DATA SECURITY OR DATA USE IF NEXTROLL ACTS IN ACCORDANCE WITH CUSTOMER’S INSTRUCTIONS. THE FOREGOING DOES NOT LIMIT NEXTROLL’S LIABILITY AS TO ANY END USER WHO IS NOT A CUSTOMER.
10. DO NOT PUT OUR PIXEL ON A CHILDRENS’ SITE OR COLLECT INFORMATION FROM CHILDREN.
Customer represents and warrants: (a) it will not place NextRoll’s pixel on any website that is directed (in whole or in part) to children under the age of sixteen (16); (b) it will not permit NextRoll to collect information from a device or browser in the possession of any child under the age of sixteen (16); and (c) it will not knowingly send NextRoll any information derived from a device or browser in the possession of any child under the age of sixteen (16).
11.1 Customer Indemnification. Customer will defend, indemnify, and hold harmless NextRoll 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) Customer’s use of any services subject to this Agreement, including without limitation regarding Customer’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 Customer, Customer’s own customers (where Customer is an Agency or Authorized Reseller), the Customer Content or Customer CRM Data.
11.2 NextRoll Indemnification. NextRoll will defend, indemnify and hold harmless Customer 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 NextRoll Materials. In no event, will NextRoll have any liability under this Section 11.2 arising from: (a) unauthorized modifications made to the Technology; (b) the Customer Content; or (c) the combination of the NextRoll Materials with any third-party software, process, or service not provided by NextRoll. NextRoll’s indemnification obligations in this Section 11.2 will be NextRoll’s sole liability and Customer’s sole remedy for any claims that the Services or NextRoll 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. NEXTROLL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER 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 NEXTROLL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL NEXTROLL’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO NEXTROLL 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 CUSTOMER, 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 Customer uses the Services and will terminate upon written notice of cancellation of Customer’s Account by NextRoll or Customer, 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) NextRoll will cease providing the Services and permitting access to the Platform to Customer; (b) Customer will, within thirty (30) days, pay to NextRoll any fees that have accrued prior to the effective date of termination; and (c) Customer will remove the NextRoll pixel from Customer Sites and NextRoll will not be liable for any damages (or any benefit to NextRoll) resulting from Customer’s failure to remove the pixel. Provided Customer is not in breach of the Agreement, subject to Section 5, NextRoll may refund Customer 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. NextRoll may immediately terminate this Agreement and move Customer to prepay pursuant to Section 5 in the event that: (a) Customer (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 Customer’s debts; or (b) a court appoints, or Customer 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 Customer or all or substantially all of its assets. Customer acknowledges that NextRoll may set off any liability owed to Customer against any liability for which NextRoll determines Customer is liable to NextRoll 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 Customer’s debts, NextRoll shall have the right to notify Customer directly in effort to settle outstanding liabilities under this Agreement.
Each party retains all right, title, and interest to its own logos and trademarks. NextRoll logos and names are trademarks of NextRoll, Inc. All other trademarks and product or company names mentioned in the Services or NextRoll Materials are the property of their respective owners and may not be used without the prior written permission of the owner.
Notwithstanding the foregoing, NextRoll may: (a) use Customer’s logos, name, and any trade names to indicate in its promotional materials that Customer is a customer of NextRoll; and (b) disclose the name of the Customer 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.
Customer may assign this Agreement upon written notice to NextRoll 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. NextRoll retains the right to assign this Agreement and delegate any or all its obligations hereunder. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
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 NextRoll first! NextRoll wants to address Customer's concerns without resorting to formal legal proceedings. Before filing a claim, Client agrees to try to resolve the dispute informally by contacting NEXTROLL first through firstname.lastname@example.org or via their allocated Account Manager.
17.2 Judicial forum for disputes. Customer and NextRoll 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. Customer and NextRoll consent to venue and personal jurisdiction in such courts. Notwithstanding the above, Customer and NextRoll agree that Customer alternatively may attend any arbitration proceedings telephonically or videographically, in which case NextRoll 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. Customer and NextRoll 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. NextRoll will pay all arbitration fees for Customer on a pre-pay plan. NextRoll will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that Customer's claim is frivolous.
Exceptions to Agreement to Arbitrate. Either Customer or NextRoll 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 NextRoll Materials at NextRoll’s sole discretion. If the agreement to arbitrate is found not to apply to Customer or Customer's claim, Customer agrees to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California to resolve Customer's claim.
Opt Out of Agreement to Arbitrate. Customer can decline this agreement to arbitrate by sending an email within thirty (30) days of first accepting this Agreement to arbitration_optout@NextRoll.com clearly stating that Customer wishes to opt out of arbitration with NextRoll and include Customer'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 NextRoll Materials, or any services provided by NextRoll 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. NextRoll reserves the right to revise this Agreement, and Customer’s rights and obligations are at all times subject to the Agreement then posted at https://www.nextroll.com. Customer’s continued use of the Service constitutes acceptance.
18.2 Independent Parties. NextRoll is an independent contractor and not an agent of Customer 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. NextRoll will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond NextRoll’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 NextRoll Services do not imply endorsement by NextRoll of any products, services or information presented therein, nor does NextRoll 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, or Product Addendum except as explicitly set forth to the contrary in such document.
18.9 Notice. All notices to NextRoll must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), electronic mail, or as otherwise specified by NextRoll. Legal notices to NextRoll must be sent to email@example.com with a copy to NextRoll, Inc. Attn: Legal, 2300 Harrison St, Fl 2, San Francisco, CA 94110, U.S.A. Notices to Customer will be sent to the Customer 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