NEXTROLL’S TERMS OF SERVICE

To see our older terms of service, click here.

Effective: May 14, 2020

These Terms of Service, together with applicable Services Addenda, Order Forms, Insertion Orders, and all links to materials referenced herein (collectively, this "Agreement"), describe the terms and conditions under which you ("Customer") may access and use the Services (defined below) of NextRoll, Inc. ("NextRoll").

BY CLICKING THE "ACCEPT" BUTTON, OR ACCEPTING THIS AGREEMENT THROUGH AN ORDER FORM THAT INCORPORATES THIS AGREEMENT, OR USING NEXTROLL’S SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF OTHER COMPANIES OR ENTITIES (FOR INSTANCE, AS AN AGENCY OR AUTHORIZED RESELLER), THEN CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO BIND SUCH COMPANIES AND ENTITIES TO THIS AGREEMENT.

NEXTROLL MAY UPDATE OR OTHERWISE MODIFY THIS AGREEMENT FROM TIME TO TIME. CUSTOMER’S CONTINUED USE OF THE SERVICES AFTER AN UPDATE WILL CONSTITUTE ACCEPTANCE.

DEFINITIONS
NEXTROLL SERVICES
CUSTOMER RESPONSIBILITIES
AGENCIES AND AUTHORIZED RESELLERS
PAYMENT TERMS
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
DATA PRIVACY OBLIGATIONS
REPRESENTATIONS AND WARRANTIES
INDEMNIFICATION
LIMITATIONS ON LIABILITY
TERM AND TERMINATION
CONFIDENTIALITY
RESOLVING DISPUTES
MISCELLANEOUS

SERVICES ADDENDA

1. DEFINITIONS

"Account" means the online account created by or on behalf of Customer to access the Services.
"Ad(s)" means Customer’s advertisements, in any form, including without limitation display, video, email, or TV.
"Agency(ies)" means an advertising agency that manages Services on behalf of one or more Clients (defined in Section 4.1), and has executed an Order Form or Insertion Order. References to "Customers" shall include Agencies.
"Applicable Law(s)" means any applicable federal, state, and foreign laws or regulations or any industry self-regulatory rules or guidelines that relate to a party’s rights and obligations under this Agreement (including, but not limited to, the Interactive Advertising Bureau (IAB) Guidelines, Standards & Best Practices, the Network Advertising Initiative (NAI) Code of Conduct, the Digital Advertising Alliance (DAA) Self-Regulatory Principles for Online Behavioral Advertising, the General Data Protection Regulation (EU) 2016/679 (GDPR), the California Consumer Privacy Act of 2018, Cal. Civil Code §1798.100 et seq, (CCPA), and the Childrens’ Online Privacy Protection Act (COPPA)).
"Authorized Reseller" means an entity that is authorized by NextRoll to resell the Services to Clients (defined in Section 4.1) through its own proprietary platform, that has executed an Order Form or Insertion Order. References to "Customers" shall include Authorized Resellers.
"Authorized Users" mean Customer’s employees and contractors who are authorized by Customer to access the Account and use the Services on Customer’s behalf, and have agreed to comply with the terms of this Agreement.
"Customer Content" means Ads, background images, trademarks, logos, company names, fonts, hex codes, images, graphics, text, audio, video files, product feeds, and other content in any media and format that is provided by Customer or obtained or created by NextRoll on Customer’s behalf for use with the Services.
"Customer CRM Data" means any clear (i.e., plain text, unhashed) email addresses or other CRM data about Customer’s End Users provided by Customer, obtained through integrations with third parties, or obtained by NextRoll on Customer’s behalf, in connection with the Services. Customer CRM Data also includes individualized reports about CRM data generated by NextRoll for Customer. Customer CRM Data does not include Service Data or Performance Reports.
"Customer Sites" mean all websites, and mobile and tablet applications owned or controlled by Customer through which the Services are integrated and Service Data or Customer CRM Data, as applicable, is collected.
"Documentation" means NextRoll’s reference documents, support service guidelines, policies, and technical material relating to the Services that are made available to Customer (whether by email, links to websites, screen or click-through display, Account dashboards, or any other method), including but not limited to those located at https://help.adroll.com/hc, https://help.rollworks.com/hc/en-us and https://www.nextroll.com/trust-center.
"End Users" mean any natural persons accessing, using, or otherwise interacting with Customer Sites or Customer Content, or associated with Customer CRM Data.
"European Territories" mean the European Economic Area, United Kingdom and Switzerland.
"Fees" are defined in Section 5.1.
"Insertion Order" means a form through which Customer may order certain Media Services.
"Media Services" are a specific type of Services further described in the Media Services Addendum (https://www.nextroll.com/terms/media-services) and the Engagement Section of the ABM Services Addendum (https://www.nextroll.com/terms/abm).
"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 Materials" means NextRoll’s Technology, Documentation, websites, dashboards, visual interfaces, graphics, design, templates, compilation, computer code, any data (including contact data) provided by NextRoll, Performance Reports, and all other elements of the Services, including any enhancements and modifications thereto and derivative works thereof.
"Order Form" means any form, invoice or record within Customer’s Account dashboard that set forth the Services selected by Customer, Term, Fees, credits and other details, and incorporates this Agreement by reference.
"Package" means the combinations of Services offered by NextRoll under this Agreement.
"Performance Reports" means all reporting, insights, analytics and other information made available by NextRoll to Customer through the Services that relate to Customer's Ads, campaigns and use of the Services, reported on an aggregated basis.
"Personal Data" is defined by the Applicable Law of each End User’s residence.
"Service Addendum(a)" means the supplemental terms and conditions, incorporated by reference into this Agreement, which govern the use of specific Services.
"Service Data" means data that is collected by NextRoll from End Users using Technology on Customer Sites, including any data obtained from third-parties while providing the Services. Service Data does not include Customer CRM Data. If Customer has configured the Technology, or authorized NextRoll to do so on its behalf, in order to send hashed End User email addresses from Customer Sites to NextRoll or has authorized NextRoll to collect and store hashed End User email addresses, such hashed End User email addresses will constitute Service Data.
"Services" mean the NextRoll advertising, marketing, sales, analytics and other service offerings made available to Customer under this Agreement.
"Technology" means the NextRoll proprietary technology used to provide the Services, including pixels, script, code, tags, application programming interfaces ("APIs"), dashboards and/or software development kits ("SDKs").
"Term" has the meaning set forth in Customer’s Order Form.

2. NEXTROLL SERVICES

2.1 Access and Use. Subject to Customer’s payment of all applicable Fees and compliance with this Agreement, NextRoll hereby grants Customer during the Term a personal, non-exclusive, non-transferable, non-sublicensable, revocable right to:

access and use the Services set forth in the applicable Order Form or Insertion Order;
use the NextRoll Materials solely in connection with the Services; and
use Performance Reports as permitted under this Agreement and Applicable Law.

2.2 Technical and Data Collection Notice Requirements. Prior to commencing the Services, Customer will be required to comply with all technical and Personal Data collection notice requirements communicated by NextRoll to Customer, which may include:

implementing Technology supplied by NextRoll on Customer Sites;
allowing NextRoll access to data collected by Customer’s mobile measurement partner ("MMP");
posting an online privacy notice as provided in Section 7.1; and/or
implementing a Consent Mechanism (defined in Section 7.3), if required under Applicable Law.

2.3 Use Restrictions. Except as permitted through the Services (or otherwise by NextRoll in writing), Customer shall not, and shall not permit a third party, to:

use the Services or NextRoll Materials for any purpose other than for Customer’s own internal business purpose;
license, sell, transfer, assign, distribute, host, rent, lease, or otherwise commercially exploit the Services or NextRoll Materials;
modify, prepare derivative works of, disassemble, decompile or reverse engineer any part of the Services or NextRoll Materials, use unauthorized APIs, create more Accounts than necessary, or attempt to gain access in any way to data outside the scope of the Services;
remove any proprietary notices from the Services or NextRoll Materials;
deliver or introduce any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Services or NextRoll Materials; or
use the Services or NextRoll Materials in any manner or for any purpose that infringes, misappropriates, or other otherwise violates any other party’s rights, this Agreement, or Applicable Law.

2.4 Beta Versions and Trials. NextRoll may make new features and/or functionality related to the Services available to Customer as a beta, pilot, test or similar description (each, a "Beta Version"), or offer a new or existing Customer a trial of the Services for a limited evaluation period (each, a "Trial"). Customer’s use of Beta Versions and/or Trials are governed by this Agreement, except that they are provided by NextRoll "AS-IS", at Customer’s own risk and excluded from all warranties and indemnities hereunder. NextRoll may discontinue or terminate Beta Versions or Trials at any time in its sole discretion and may choose not to make Beta Versions generally available.

3. CUSTOMER RESPONSIBILITIES

3.1 General. Customer is solely responsible for its use, and its Authorized Users’ use, of the Services and NextRoll Materials and for all activities occurring in its Account.

3.2 Accounts.

Account Set-Up. Customer is responsible for ensuring that all information used to set-up and maintain an Account is up-to-date, complete and accurate during the Term, including without limitation contact, billing, and payment information, and budget and campaign detail relating to Services.
Passwords and Log-Ins. All passwords and log-in details provided to, or created by, Customer in connection with this Agreement must only be used by and for Customer. Account passwords and log-in details may not be shared with any other person or entity, other than Authorized Users. Customer will secure its Account passwords and log-in details and promptly notify NextRoll of any breach or suspected breach of security, misuse or unauthorized access.

3.3 Customer Content. Customer is responsible for all Customer Content posted or published on or through the Services and on Customer Sites and compliance with NextRoll’s Advertising Policies (https://help.adroll.com/hc/en-us/categories/360001977912-Advertising-Policies). During the Term, Customer grants NextRoll a non-exclusive, worldwide, royalty-free license to use, modify, display, distribute, reproduce, store and publish Customer Content on and in connection with NextRoll’s provision of Services to Customer (e.g., for use in Ads, email templates or customization of the Account dashboard). Customer shall provide NextRoll with Customer Content in the form and manner specified by NextRoll or allow NextRoll to retrieve it directly from Customer Sites.

3.4 Use of Trademarks. During the Term, Customer grants NextRoll the right to use Customer’s approved trademarks, logos, and names on NextRoll’s press releases, websites, social media, and other promotional materials, solely to identify Customer as a customer of NextRoll.

4. AGENCIES AND AUTHORIZED RESELLERS

4.1 General.This Section 4 only applies to Customers that are “Agencies” or “Authorized Resellers”. All rights, obligations and references to "Customer" in this Agreement shall also apply to Agencies and Authorized Resellers. Agencies and Authorized Resellers shall be responsible for their respective customers’ or clients’ (collectively, "Clients") compliance with this Agreement. In addition to the representations and warranties set forth in Section 8.1, Agencies and Authorized Resellers represent and warrant to NextRoll that they each have the authority to act on behalf of their Clients with respect to all obligations and representations set forth in this Agreement, and will provide written confirmation of the same if requested.

4.2 Agencies. Agency may establish an "Agency Account" to manage Services on behalf of one or more of Agency’s Clients pursuant to this Agreement. NextRoll reserves the right, in its sole discretion, to object to any Agency’s or Agency’s Client’s use of the Services.

Fees. Unless otherwise agreed in writing, Agency will be invoiced directly and shall be liable for all Fees incurred by Clients under this Agreement, regardless of whether Agency has been paid by Client. Agency will regularly monitor the credit risk of its Clients to ensure that Clients have sufficient funds to order Services under this Agreement. If NextRoll has agreed to bill a Client directly for any Fees and Client defaults on timely payment of such Fees (or in any event, has not made payment of all such Fees within ninety (90) days of the rendering of applicable Services) then Agency shall be held responsible for the full amount and NextRoll reserves the right to suspend or terminate the Agency’s entire Account and access to the Services.
No exclusivity. Agency Clients may request at any time to be migrated over to another Agency Account or to a direct Account with NextRoll and nothing in this Agreement will prevent NextRoll from facilitating such transfer or from Clients from entering into a direct relationship with NextRoll.
Disclosure to Clients about Agency Rebates and/or Referral Fees. NextRoll may provide rebates and/or referral fees to any Agency that introduces Clients to NextRoll. Agency represents and warrants to NextRoll that it will make the foregoing disclosure available to Clients, if and to the extent required under Applicable Law.

4.3 Authorized Resellers. Authorized Resellers may establish a "Reseller Account" to facilitate Authorized Resellers’ marketing and sale of Services to Clients. Authorized Resellers may be required to enter into a separate license to use NextRoll’s Reseller API (https://www.nextroll.com/terms/api).

Fees. Unless otherwise agreed in writing, Authorized Resellers will be invoiced directly for all Fees incurred by Clients under this Agreement regardless of whether Authorized Reseller has been paid by Client.
Client Support. Authorized Reseller agrees that it will be solely responsible for providing support to Clients (a) in connection with such Clients’ use of the Services; and (b) marketing efforts related to the "go to market" life cycle for Services, provided that any marketing materials prepared and/or used by Authorized Reseller are in compliance with NextRoll marketing requirements and Documentation. On request, NextRoll will provide commercially reasonable support to Authorized Reseller in connection with its resale of Services to potential Clients under this Agreement.

5. PAYMENT TERMS

5.1 Fees. Customer shall pay the following fees ("Fees"):

Fees for Packages. Fees for Packages will be set forth in Customer’s Order Form or Insertion Order.
Fees for Media Services, Add-Ons and API Media Integrations. Fees for Media Services, "add-ons" and certain API Media Integrations are in addition to the Fees for Packages, and additional payment terms may be set forth in the Services Addenda, Order Form or Insertion Order.
Promotions; Credits. NextRoll may offer Customer certain promotions, discounts, general credits, media credits or other special offers which will be reflected in Customer’s Order Form or Insertion Order. There will be no refunds or credits for partial terms, downgrades, or unused credits or features.
Overage Fees. If Customer exceeds any usage limits specified in the Order Form, Services or Documentation, then NextRoll reserves the right to upgrade Customer to the next tier Package corresponding with Customer’s usage for the remainder of the Term, or bill Customer for the Fees associated with the overage, in each case using the billing information associated with the Account.
Changes in Fees. NextRoll reserves the right to change its Fees and to institute new charges at any time (including for any renewal) upon notice to Customer via email, written notice or notice through the Services. Customer’s use of the Services following such notification constitutes its acceptance of any new or increased Fees.

5.2 Payment Terms. Unless otherwise agreed by the parties in writing, payment terms will be specified in the Order Form and billed as follows:

Packages. All Packages (excluding any "Free" Packages) are billed in advance and are non-refundable. Packages will automatically renew for successive Terms of the same duration (e.g., a 12-month Package will automatically renew for another 12-months, a monthly Package will renew for another month), and Customer will be charged the applicable Fees on each anniversary of purchase, unless cancelled or downgraded in accordance with Section 11.2 or 11.3.
Media Services. Unless otherwise agreed in writing, Fees for Media Services will be automatically billed in arrears on a weekly basis.

5.3 Taxes. Fees are quoted exclusive of any Taxes (defined below). Customer is responsible for all sales, use, value added, withholding, and any other similar taxes imposed by federal, state, local, or foreign governmental entities on the transactions contemplated by this Agreement ("Taxes"), excluding taxes based solely upon NextRoll’s net income, even if NextRoll did not collect and remit such Taxes on Customer’s behalf. If NextRoll is assessed fines, penalties or payments for non-payment of Taxes, then NextRoll will be entitled to full reimbursement of such amounts by Customer.

5.4 Non-Payment; Late Payment.

Suspension or Termination. NextRoll may suspend or terminate Customer and its Authorized Users’ access to the Services, in whole or in part, without notice, for non-payment of Fees. Termination or suspension will not relieve Customer of its obligation to pay Fees pursuant to this Agreement. NextRoll reserves the right to downgrade Customer to a lower Package, or charge a reactivation fee to reinstate the Services.
Interest. Without limiting NextRoll’s remedies, NextRoll may charge interest on overdue Fees from the due date up to the date of actual payment 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 Fees, including reasonable attorneys’ fees and costs of collection.
Set-Off. NextRoll may set off any liability owed to Customer against any liability for which NextRoll reasonably determines Customer is liable to NextRoll, related to Services under this Agreement.
Credit Risk. 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 modify Customer’s payment terms. If an Agency or Authorized Reseller (but not its Client) 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 relevant Clients directly in effort to settle outstanding liabilities under this Agreement.

5.5 Billing Disputes. Any claims or disputes relating to Fees under this Agreement must be sent to NextRoll in writing within thirty (30) days of the billing date or will be waived by Customer.

6. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

6.1 NextRoll Property.

General. NextRoll owns or controls all right, title and interest in and to the Services, Service Data, Performance Reports, and NextRoll Materials, including all intellectual property rights contained therein. Customer’s right to use the Services and NextRoll Materials are strictly limited to those rights expressly granted in this Agreement and all other rights are reserved to NextRoll.
Hashed Emails used in Cross-Device Graph.
- If Customer opts-in to cross-device or any other Service where email (plain text, unhashed) addresses are automatically collected by NextRoll through the Technology (specifically, the NextRoll pixel), the following provisions apply:
  - NextRoll will collect and use hashed emails derived from such email addresses and other End User identifiers (collectively, "Hashed Emails"). Hashed Emails are considered Service Data and stored as a persistent part of NextRoll’s cross-device graph. NextRoll may combine Hashed Emails with Service Data from other customers for purposes of providing Services generally to customers.
  - Customer must:
    - provide appropriate notice to End Users, before or at the time of submission (i.e., a “just-in-time” notice); and
    - disclose to End Users in an online privacy notice, that any email addresses provided will be hashed, stored, and combined with other identifiers for cross-device recognition purposes and targeted advertising and measurement and analytics by NextRoll (as applicable).

6.2 Customer Property. Customer owns or controls all rights in and to Customer Content and Customer CRM Data. NextRoll will not use Customer Content or Customer CRM Data for any purpose other than to: (a) provide Services to Customer as provided in this Agreement and (b) use, publish, display and distribute de-identified, aggregated, non-personally identifiable information derived from such content and data for purposes of improving NextRoll’s Services, benchmarking and reporting.

6.3 Feedback. The parties agree that any comments, ideas, suggestions or feedback provided by Customer or Authorized Users may be used by NextRoll to develop and improve the Services, NextRoll Materials, new products and/or new services without compensation, notice or obligation to such Customer or Authorized User.

6.4 Third-Party Trademarks. Any third-party trademarks, product or company names referenced 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.

7. DATA PRIVACY OBLIGATIONS

7.1 General Obligations With Respect to End User Privacy. Customer is responsible for all Customer Sites integrated or used with the Services, including without limitation:

compliance with all Applicable Laws that relate to data protection and individual privacy and publicity rights; and
posting an online privacy notice that:
- discloses in a legally sufficient manner how data (including Personal Data) is collected through the Customer Sites using tracking technologies such as third party cookies and non-cookie technologies;
- discloses the purposes for which data is collected and used by Customer and NextRoll, including without limitation, for measurement, analytics, and interest- based advertising;
- includes instructions on how End Users can control the collection of data by web browsers and mobile devices; and
- includes instructions on how End Users can opt-out from receiving interest-based advertising (including ads served using non-cookie technologies) through all relevant industry self-regulatory links provided via 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/.
More information about NextRoll’s privacy notice requirements found here: (for AdRoll Customers https://help.adroll.com/hc/en-us/articles/216104687-Privacy-Notice-Requirement) (for RollWorks Customers https://help.rollworks.com/hc/en-us/articles/360036024352-Privacy-Notice-Requirements).
informing End Users how they may opt-out from receiving cross-site advertising, by accessing their device setting or visiting and employing the controls described on the NAI’s Mobile Choices page.

7.2 Additional Obligations With Respect to End User Privacy in California. Where the Customer Sites attract End Users from California, Customer must provide specific notice to California residents in the Customer’s online privacy notice that includes a link to the California Residents Section of NextRoll’s Service Privacy Notice (https://www.nextroll.com/privacy), which addresses NextRoll’s obligations under the California Consumer Privacy Act of 2018, Cal. Civil Code §1798.100 et seq, as may be subsequently amended, and any related regulations ("CCPA").

If Customer provides NextRoll with any Customer CRM Data of California residents and/or NextRoll collects Customer CRM Data of California residents on behalf of Customer then the NextRoll CCPA Service Provider Addendum (available at https://www.nextroll.com/terms/ccpa-service-provider) is incorporated into and made part of this Agreement.

7.3 Additional Obligations With Respect to End User Privacy in European Territories and Elsewhere.

Consent Mechanism. Where the Customer Sites attract End Users from European Territories, Customer must deploy a consent and transparency mechanism ("Consent Mechanism") on Customer Sites to obtain End User consent to NextRoll (and its Network) placing cookies or similar tracking technologies on End Users' browsers.
- The Consent Mechanism must state the purpose of any data collection and meet the technical and policy compliance checks for the most current and functioning Transparency and Consent Framework ("TCF") of the Interactive Advertising Bureau ("IAB"), as demonstrated by passing the IAB Europe’s CMP Validator (a tool to check compliance with the TCF). Customer may satisfy the foregoing requirement by using the Consent Mechanism made available by NextRoll.
Consent Mechanisms in Other Territories. The foregoing obligations shall also apply where the Customer Sites attract visitors from other jurisdictions that require notice and Consent Mechanisms with respect to the placement of or access to cookies or similar tracking technologies on visitors’ devices and/or specific data transfer mechanisms under Applicable Law.
GDPR Data Protection Addendum. The parties agree that the NextRoll Data Protection Addendum (available at https://www.nextroll.com/terms/data-protection) is incorporated and made part of this Agreement and shall apply with respect to the parties’ processing of Personal Data attaching to residents of the European Territories.

7.4 Children. Customer is expressly prohibited from:

placing Technology (e.g., NextRoll pixel) on any Customer Sites that are directed (in whole or in part) to children under the age of sixteen (16);
permitting NextRoll to collect information from a device or browser in the possession of any child under the age of sixteen (16); and
knowingly sending NextRoll any information derived from a device or browser in the possession of any child under the age of sixteen (16).

7.5 Changes in Applicable Law. NextRoll may update this Agreement and Customer’s obligations with respect to privacy, from time to time, in order to comply with any new laws, rules and regulations promulgated under the CCPA, other states in the U.S. and/or countries outside the U.S (all of which, when enacted, will constitute, "Applicable Law" and, as applicable, be binding on Customer).

7.6 Suspension of Services. Failure by Customer to implement appropriate notice and Consent Mechanisms as required by Applicable Law constitute a material breach of this Agreement, and NextRoll may suspend or terminate the Services under this Agreement.

8. REPRESENTATIONS AND WARRANTIES

8.1 By Customer. Customer represents and warrants to NextRoll that: (a) it has the right to enter into this Agreement, grant all rights granted and perform its obligations under this Agreement; (b) Customer Content and Customer Sites do not include and do not give access via hyperlinks to any property containing materials that are: obscene, infringe or misappropriate third party rights, or contrary to this Agreement (including the Documentation) or Applicable Law; (c) Customer Content, Customer Sites, and Customer’s use of the Services will comply at all times with this Agreement, the Documentation and Applicable Law; (d) its collection, transfer, use and disclosure of all data under this Agreement will not violate the rights of any third-party (including any End Users), Applicable Law or any statements in Customer’s online privacy notice; and (e) Customer will not attempt to identify or re-identify any data NextRoll provides to Customer in an anonymous or aggregated fashion.

8.2 By NextRoll. NextRoll represents that: (a) it has the right to enter this Agreement, grant all rights granted and perform its obligations under this Agreement; and (b) the Services will be provided substantially in accordance with the Documentation. For any breach of this Section 8.2, NextRoll’s sole liability and Customer’s sole remedy will be re-performance of the Services by NextRoll or to exercise its termination rights under Section 11.3.

9. INDEMNIFICATION

9.1 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) from any claim or demand by a third-party arising out of: (a) Customer’s use of the Services and NextRoll Materials; (b) Customer’s breach of this Agreement; (c) Customer’s infringement, misappropriation or violation of Applicable Law or any third party rights (including intellectual property, property, privacy or publicity rights); and/or (d) Customer Content, Customer Sites, Customer CRM Data, or any other data provided by Customer in connection with the Services.

9.2 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) from any claim or demand by a third-party that the Services or NextRoll Materials, used in accordance with this Agreement, violates, infringes, and/or misappropriate any copyright, trade secret, U.S. patent or trademark rights. NextRoll will not have any liability under this Section 9.2 arising from: (a) unauthorized use or modifications made to the Services or NextRoll Materials; or (b) the combination of the Services or NextRoll Materials with any third-party software, process, or service not provided by NextRoll. If NextRoll reasonably believes that the Services or NextRoll Materials could become subject to a third party claim of infringement, NextRoll may in its sole discretion: (i) modify the Services of NextRoll Materials so that it no longer infringes or misappropriates; (ii) obtain a license for Customer’s continued use of the affected Services or NextRoll Materials in accordance with this Agreement, or (iii) terminate the affected Services or this Agreement upon 30 days’ prior written notice and provide a refund of any pre-paid fees applicable to any period following the effective date of termination. NextRoll’s indemnification obligations in this Section 9.2 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 third-party intellectual property rights.

9.3 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.

10. LIMITATIONS ON LIABILITY

10.1 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS STATED IN SECTION 8, 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 ABOUT THE SERVICES AND NEXTROLL MATERIALS WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, COMMON LAW OR CUSTOM AND: (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 PROMISES REGARDING THE RESULTS CUSTOMER WILL OBTAIN THROUGH THE USE OF THE SERVICES.

10.2 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.

10.3 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.

10.4 Cap on Liability. UNDER NO CIRCUMSTANCES WILL NEXTROLL’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO NEXTROLL UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.

10.5 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 10 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. TERM AND TERMINATION

11.1 Term and Renewal. This Agreement will remain in full force and effect while Customer uses the Services. The "Initial Term" of each Package will be set forth in Customer’s Order Form and, unless terminated in accordance with this Agreement, will automatically renew for additional, successive terms of the same duration (each a "Renewal Term" and together with the "Initial Term", the "Term"). The renewal pricing set forth in Customer’s Order Form will apply, subject to any adjustment as specified in Section 5.1. If renewal pricing is not included in Customer’s Order Form, then NextRoll’s standard pricing available on the date of renewal will apply.

11.2 Termination and Downgrades. Customer may terminate (cancel) or downgrade a Package by providing NextRoll written notice to support@nextroll.com as follows:

Packages for Terms of 6-months or more. At least thirty (30) days’ prior to the end of the then-current Term.
Packages for Month-to-Month Terms. At least seventy-two (72) hours prior to the end of the then-current month Term.

All terminations (cancellations) and downgrades will take effect at the end of the then-current Term. Customer will not get a refund of pre-paid Fees.

11.3 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Services: (a) immediately, if the other party fails to cure a material breach within 30 days’ of receiving written notice from the non-breaching party, or (b) immediately, to the extent permissible under Applicable Law, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated by Customer prior to the end of the Term.

11.4 Suspension for Prohibited Acts. NextRoll may suspend Customer and its Authorized Users’ access to any or all Services, in whole or in part, without notice, if: (a) Customer or its Authorized Users are in material breach of this Agreement; (b) NextRoll receives a claim, complaint, or notice that Customer Content or Customer Sites violate, infringe or misappropriate any third-party rights (e.g., a DMCA notice); or (c) Customer or its Authorized Users use the Services or NextRoll Materials in violation of Applicable Law.

11.5 NextRoll’s Changes to the Services. NextRoll reserves the right to change, modify, suspend, or discontinue temporarily or permanently, some or all of the Services, with respect to any or all Customers, at any time without notice. Customer agrees that NextRoll will not be liable to Customer for any modification, suspension, or discontinuance of the Services, although if Customer has selected a paid Package or other prepaid Services, and NextRoll suspends or discontinues the Services, NextRoll may, in its sole discretion, provide Customer with a credit, refund, discount or other form of consideration. However, if NextRoll terminates, suspends, or discontinues Customer’s Account due to Customer’s breach of this Agreement, then Customer will not be eligible for any such credit, refund, discount or other consideration.

11.6 Post-Termination Obligations. Upon termination of this Agreement for any reason:

NextRoll will immediately cease providing the Services to Customer and its Authorized Users.
Customer will:
- within thirty (30) days, pay to NextRoll any Fees that have accrued prior to the effective date of termination;
- immediately remove the Technology (e.g. NextRoll pixel) from Customer Sites, and in no event later than thirty (30) days from the date of termination. NextRoll will not be liable for any damages (or any benefit to NextRoll) resulting from Customer’s failure to remove the Technology; and
- immediately disable any integrations with third party services that facilitate transfer of Customer CRM Data to the Services.

Following termination of this Agreement, NextRoll reserves the right to permanently delete all Customer CRM Data stored on the NextRoll Services without further notice to Customer.

11.7 Survival. The following Sections will survive expiration or termination of this Agreement: Sections 1, 4 -14 (as applicable).

12. CONFIDENTIALITY

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 (i) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (ii) 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 agreed to confidentiality terms no less protective than those set forth in this Section 12; and (iii) maintain the confidentiality 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 Applicable Law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by Applicable Law) of such requirement to the Disclosing Party before such disclosure and reasonably assist the Disclosing Party, at Disclosing Party’s cost, in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 12 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. NextRoll may disclose the name of Customer and existence of this Agreement as required by Applicable Law, court or regulatory order, audit or investigation.

13. RESOLVING DISPUTES

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.

13.1 Please contact NextRoll first! NextRoll wants to address Customer's concerns without resorting to formal legal proceedings. Before filing a claim, Customer agrees to try to resolve the dispute informally by contacting NextRoll first through support@nextroll.com, or via Customer’s designated Account Manager.

13.2 Venue 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:

13.3 Arbitration.

Agreement 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") will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States in accordance with the venue specified in Section 13.2.
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 where Customer’s claim is for less than $50,000. 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 party may assert claims, if they qualify, in small claims court in San Francisco, California, provided that NextRoll agrees that Customer may choose to appear by video, and if Customer so chooses, then NextRoll shall appear by video as well. 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. If this Agreement to arbitrate is found not to apply to Customer or Customer's claim, Customer agrees to the exclusive jurisdiction of and venue in 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 entering into this Agreement to: arbitration_optout@nextroll.com clearly stating that Customer wishes to opt out of arbitration with NextRoll and include Customer's name, and the name and email address associated with the Account.

13.4 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 the 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.

13.5 Controlling Law. This Agreement is governed by the law of the State of California except for its conflicts of laws principles.

14. MISCELLANEOUS

14.1 Assignment. Customer may not assign this Agreement without the prior written consent of NextRoll; provided, however, Customer may assign this Agreement with prior written notice to NextRoll to an acquirer of all or substantially all of its assets or stock. Any other attempt to transfer or assign is void. NextRoll may 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.

14.2 Export Control Laws. The Services and 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.

14.3 Amendments. NextRoll reserves the right to revise this Agreement and Services, and Customer’s rights and obligations are at all times subject to this Agreement then posted at https://www.nextroll.com. Customer is responsible for checking for updates online, and continued use of the Services after an update constitutes acceptance of this Agreement.

14.4 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).

14.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding 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.

14.6 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.

14.7 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.

14.8 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.

14.9 Third-Party Website Disclaimer. Links to third-party websites from the Services do not imply endorsement by NextRoll of any products, services or information presented therein, nor does NextRoll warrant or otherwise guarantee the accuracy of the information contained on them.

14.10 Order of Precedence. In the event of a conflict or inconsistency between any of the terms of the following documents, the following order of precedence shall control: (a) Insertion Order; (b) Order Form; (c) relevant Service Addendum; and (d) these Terms of Service.

14.11 Notice. Except as otherwise provided in this Agreement, all notices to NextRoll must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested):

NextRoll, Inc.
2300 Harrison St
San Francisco, CA 94110
U.S.A.
Attn: Legal Department
With an email copy to: legalnotices@nextroll.com

Notices to Customer will be sent to the email address on file and/or posted through the Services and are deemed effective when sent or posted.