Analytics by Rokt Terms of Service

HESE ‘ANALYTICS BY ROKT’ TERMS OF SERVICE (THIS "AGREEMENT") ARE ENTERED INTO BY THE ROKT ENTITY AS SET FORTH IN SECTION 38 ("ROKT") AND THE ENTITY EXECUTING THIS AGREEMENT ("YOU"). THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES (AS DEFINED BELOW). BY CLICKING THE "I ACCEPT" BUTTON, SETTING UP AN ACCOUNT, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT.

In consideration of the Parties’ respective rights and obligations that are described in this Agreement, the Parties agree as follows:

Definitions

“Analytics by Rokt” means the product and service provided by Rokt under this Agreement via the Rokt Platform whereby Rokt will process Advertiser Data (as defined in Clause 14) in order to perform measurement, analytics and optimization of Your Campaigns run on Partners of Rokt.

“Licensed Software” means such elements of the Rokt Platform, including but not limited to the Rokt SDKs and Rokt APIs, as You are to run on Your computers as may be provided from time to time by Rokt in connection with the Services, including but not limited to that related to the Rokt Placement.

“Rokt APIs” mean certain application programming interfaces which may be used or incorporated into Site for the purpose of collecting Conversion Data or certain event data, together with any fixes, updates, and upgrades provided to You.

“Rokt Platform” means the technology platform owned, controlled and/or operated by Rokt, made available to You as a hosted service, and used to provide the Services under this Agreement, which incorporates, without limitation, the Licensed Software (including the Rokt SDK and Rokt APIs), the web portal through which Partner may access its Rokt Account, and all software, scripts, data, files, methods, APIs or functionality therein and thereto enabling the provision of such Services.

“Rokt SDK” mean certain software development kits, which may be used or incorporated into Site for the purpose of collecting Conversion Data, together with any fixes, updates, and upgrades provided to You.

Service

1. By implementing and using Analytics by Rokt, You enable Rokt to process information about transactions completed by your End Customers (“Conversion Data”) in order to analyze, measure and optimize the performance of certain advertising, marketing or promotional campaigns You run (“Campaigns”) on a selected network of partners who operate websites, mobile applications, and e-commerce engines (“Partners”) each of which utilizes the Rokt Platform (such network, the “Partner Network”). You authorize Rokt to provide certain data analytics and performance measurement services in connection with Your Campaigns, and other services including access to and use of the Rokt Platform, where applicable, (together, “Services”) in accordance with this Agreement.

Account and Fees

2. These Services may be provided to You by registering for an account (“Account”) via the Rokt Platform. Provision of the Services, and Account registration, requires You to submit to Rokt Your corporate and personal information, as well as a valid payment method. You are solely responsible for any and all activities that occur under Your Account (save for activities carried out by, or on behalf of, Rokt). You will notify Rokt immediately upon learning of any unauthorized use of Your Account or any other breach of security.
3. Subject to Clause 29, the Services are provided without charge to You. Rokt may change its fees and payment policies for the Service from time to time, or place technical limits on Your use and consumption of the Rokt Platform.

License

4. Rokt grants You a royalty free, non-exclusive, non-sublicensable license to use the Licensed Software (including to install, copy and use the Licensed Software on Your website(s), application(s) or other digital properties associated with your Account (“Sites”) and access and use the Rokt Platform, as applicable) solely as necessary for the provision of the Services. Except for the foregoing license, You have no other rights in the Licensed Software and may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, or in any way exploit the Rokt Platform in any manner. On expiration or termination of this Agreement, You will cease using the Rokt Platform.
5. Copies of the Licensed Software created or transferred pursuant to this Agreement are licensed, not sold, and Partner receives no title to or ownership of any copy or of the Licensed Software itself. Furthermore, Partner receives no rights to the Licensed Software other than those specifically granted in Clause 4 above. Without limiting the generality of the foregoing, Partner shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Licensed Software; or (b) use the Licensed Software in any way forbidden by Clause 7(d) below.
6. Promptly after the date of this Agreement Rokt or the relevant Partner will provide You with access to the Licensed Software and related documentation. You shall host and manage the Licensed Software as required by the hosting and management, operating system, hardware configuration or other technical requirements communicated to You by Rokt at docs.rokt.com or otherwise from time to time (the “Hosting and Management Requirements”). Rokt shall have no responsibility or liability for any failure of the Rokt Platform resulting from Your failure to comply with the Hosting and Management Requirements.

Warranties

7. You acknowledge and agree that:
8. (a) You will comply with all applicable laws when using the Services, and You may only use the Services for lawful purposes;
9. (b) You will display a clearly labelled and easily accessible privacy policy on any website, application or other asset on which Rokt Software is implemented by You, which privacy policy shall comply with applicable privacy laws and, without limitation, provide end-users with clear and comprehensive information about information stored on, accessed on, or collected from end users’ devices in connection with the Sites including cookies, device-specific information, location information, and other information.
10. (c) You shall take reasonable steps to prevent unauthorized access to the Rokt Platform, including without limitation by protecting Your passwords and other log-in information. You shall notify Rokt immediately of any known or suspected unauthorized access to or use of the Rokt Platform or breach of its security and shall use best efforts to prevent, mitigate and/or remedy any such breach and its effects.
11. (d) You shall not: (i) use the Rokt Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Rokt Platform; (ii) provide Account passwords or other log-in information to any third party; (iii) share non-public Rokt Platform features or content with any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Rokt Platform’s source code, (v) access or use the Rokt Platform in a way intended to avoid incurring fees or exceeding usage limits or quotas, (vi) resell or sublicense any element of the Rokt Platform or (vii) access the Rokt Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Rokt Platform, or to copy any ideas, features, functions or graphics of the Rokt Platform. If it suspects any breach of the requirements of this Clause 7(d), including without limitation by Your employees, agents, or representatives, Rokt may suspend Your access to the Rokt Platform without advanced notice, in addition to such other remedies as Rokt may have.
12. (e) systems or technological failure may impede or prevent access to all or any part of the Services from time to time and transmission of data over the internet may be subject to errors and delays (collectively, “Delays”) and Rokt shall not be liable to You for any such Delays

Disclaimer of Warranties

8. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, ROKT MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.

Intellectual Property

9. You acknowledge and agree that as between You on the one hand, and Rokt and its affiliates on the other, Rokt and its affiliates own all right, title and interest in the Rokt Platform, the Rokt Software and the Services. You agree that all intellectual property rights and interests in innovations relating to Rokt Platform, the Rokt Software and the Services (or suggested improvements) shall be assigned to Rokt and be Rokt’s sole property, and You agree to execute any instruments of assignment reasonably requested by Rokt to effectuate the same.
10. Other than as expressly set out in the Agreement, neither Party has or will acquire any right, title or interest in any intellectual property rights owned or licensed by the other Party.

Privacy

11. All data or other information which is supplied from time to time by Rokt (or by a Partner on behalf of Rokt) to You in relation to the Services or any Campaign, end user or customer, including performance data ("Rokt Data"), is supplied to You specifically for the specific purpose of its use in connection with the Services, and for no other purpose. The use and disclosure of such data will also be subject to such limitations for the use and disclosure of such data as apply at the time of collection of such data.
12. Rokt will ensure that it will collect and use data in accordance with the applicable privacy, spam, and data protection legislation applicable in the jurisdictions in which the specific data is collected.
13. In connection with your use of the Services, You agree to observe the obligations contained in applicable privacy, cookie, data protection, and other applicable legislation or regulation in the jurisdictions in which You operate. This shall include (but not be limited to) Your:
14. (a) (Lawful Grounds for Processing): ensuring You have a lawful basis for processing customers’ personal data in connection with the Services, including the transmission of personal data to Rokt;
15. (b) (Storage): taking reasonable steps to protect the personal information and data from unauthorized access, misuse, modification, or disclosure;
16. (c) (Data Subject Rights): allowing users to, without limitation, access, correct or delete their personal data in accordance with applicable laws;
17. (d) (Complaints) maintaining a complaint management process for the handling of any privacy complaints received, in accordance with any applicable laws;
18. (e) (Cookies) providing end users with clear and comprehensive information about information stored on, accessed on, or collected from end users’ devices in connection with the Services including first and third party cookies, device-specific information, location information, and other information;
19. (f) (Opt-Out) providing end users with clear instructions about their right to opt out of certain data processing in connection with Rokt’s provision of the Services.
20. Where You provide, integrate or make available Conversion Data (or any other data including any personal information) to Rokt during the term via the Rokt Software in connection with Services ("Advertiser Data"), You warrant that You are authorized to disclose that Advertiser Data to Rokt in accordance with Your own privacy policy and applicable privacy and data protection laws. Notwithstanding anything to the contrary in the USDPA or DPA referenced below, You acknowledge and agree that certain Conversion Data may be accessible in aggregated form by a Partner on whose Site you run Campaigns.
21. To the extent any Advertiser Data processed in Rokt’s provision of the Services contains personal data of residents of the United States, the terms and conditions of the United States Data Processing Agreement at https://www.rokt.com/data-processing-agreement-advertisers-us/ (the “USDPA”) will apply (and will take priority over any of the foregoing provisions of this Section if and to the extent only of any conflict or inconsistency between them) (and such Advertiser Data shall constitute "Advertiser Personal Data" for purposes of the USDPA).
22. To the extent: (i) Rokt or You are established in the European Union or the United Kingdom, (ii) any Rokt Data or Advertiser Data processed in Rokt’s provision of the Services contains personal data of individuals in the European Union or the United Kingdom, or (iii) European Privacy Law or UK Privacy Law (each as defined below) otherwise applies to the Rokt Data or Advertiser Data processed in Rokt’s provision of the Services, the terms and conditions of the Data Processing Agreement at https://rokt.com/data-processing-agreement-advertisers/ (the “DPA”) will apply (and will take priority over any of the foregoing provisions of this Section if and to the extent only of any conflict or inconsistency between them) (and such Rokt Data and Advertiser Data shall constitute "European Personal Data" for purposes of the DPA).

"European Privacy Law" means the EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”).

"UK Privacy Law" means: (i) the EU General Data Protection Regulation (Regulation 2016/679) as it forms part of the law of the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018; and (ii) the Data Protection Act 2018.

Confidential Information

17. For the purposes of this Agreement, "Confidential Information" means this Agreement, the Rokt Data, the Advertiser Data and all information about the disclosing party's business or activities that is proprietary or confidential. This includes, without limitation, (i) all business, financial, technical, and other information of a party marked or designated by such party as "confidential" or "proprietary" at the time of disclosure, or (ii) by the nature of the circumstances surrounding disclosure, ought to be treated as “confidential” or “proprietary”.
18. Each party will use commercially reasonable efforts to maintain all Confidential Information of the other party in confidence and will safeguard such Confidential Information with at least the same care as its own confidential information. Each party may use such Confidential Information only for the purposes of performing that party’s obligations under this Agreement, subject to the remaining provisions of this Section.
19. Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a non-disclosure obligation, (iii) the receiving party rightfully knew prior to receiving such information from the disclosing party or (iv) the receiving party develops independently of any information originating from the disclosing party.
20. Each party agrees that (i) it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and (ii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, each party may disclose Confidential Information (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law; (b) on a "need-to-know" basis under an obligation of confidentiality to its subcontractors, legal counsel, accountants, banks, and other financing resources and their advisors; or (c) to members of its own corporate group for the purposes of performing its obligations under this Agreement.
21. Each party acknowledges that any material violation of a party of the rights and obligations provided in this Section may result in immediate and irreparable injury to the other party, and hereby agrees that the other party may be entitled to seek immediate temporary, preliminary, and permanent injunctive relief against any continued violations upon adequate proof, as required by law.

Indemnification

Indemnity by Rokt:

22. Subject to Clauses 22(a) through 22(d), Rokt indemnifies, defends and holds harmless You and your respective directors, officers, employees, agents and contractors both jointly and severally from and against any loss, expense, including reasonable attorney fees and expenses, damages, or liability reasonably incurred or suffered by You arising from any claim, demand, action, suit or proceedings brought by a third party in relation to the Rokt Platform’s infringement of a copyright or patent, or mis-appropriation of the proprietary trade secret of a third party.
23. (a) Rokt agrees that it may not, without Your prior written consent, enter into any settlement or compromise of any claim that results in any admission of liability or wrongdoing on Your part.
24. (b) The obligations under Clause 22 are subject to You giving Rokt prompt written notice of any such claim and giving Rokt sole control of the defense of such claim.
25. (c) If a claim of infringement occurs that is subject to this Clause 22, or if Rokt determines that such a claim is likely to occur, Rokt may, at its option, procure for You the right to continue to use the Rokt Platform, replace or modify the Rokt Platform to make it non-infringing, or terminate this Agreement.
26. (d) Rokt will have no liability for any claim based on (i) any use of the Rokt Platform or the Services other than as permitted by this Agreement; or (ii) the combination of the Rokt Platform (or any component thereof) with any product, technology, data or materials, if the Rokt Platform, alone, would not have resulted in such infringement.

Indemnity by Partner:

23. Subject to Clauses 23(a) and 23(b), You indemnify, defend and hold harmless each of Rokt, its affiliates and their respective directors, officers, employees, agents and contractors both jointly and severally from and against any loss, expense, including reasonable attorney fees and expenses, damages, or liability reasonably incurred or suffered by Rokt, its directors, servants and agents arising from any claim, demand, action, suit or proceedings brought by a third party in relation to any (i) Advertiser Data or Conversion Data, (ii) breach by You of applicable laws (including but not limited applicable data protection laws), or (iii) Site with which the Rokt Platform integrates, including Your business and provision of services in connection with such Site.
24. (a) You agree that You may not, without Rokt’s prior written consent, enter into any settlement or compromise of any claim that results in any admission of liability or wrongdoing on the part of Rokt.
25. (b) Your obligations under Clause 23(a) are subject to Rokt giving You prompt written notice of any such claim and giving You sole control of the defense of such claim.

LIMITATION OF LIABILITY.

24. IN NO EVENT WILL ROKT BE LIABLE TO YOU IN AN ACTION UNDER TORT, CONTRACT, WARRANTY, OR ANY OTHER THEORY OF LIABILITY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE/EXEMPLARY DAMAGES OR LOSSES ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT, OR THE PERFORMANCE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES OR LOSSES ARISING FROM (I) LOSS OF BUSINESS, PROFIT OR REVENUES, (II) LOSS OF CONTENT, DATA, OR PROGRAMMING, (III) FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, (IV) SUBSTITUTE PROCUREMENT, (V) DAMAGE TO EQUIPMENT OR SYSTEMS, OR (VI) ANY CAMPAIGN CONTENT SUGGESTED BY ROKT, IN EACH CASE INCURRED BY YOU OR ANY THIRD PARTY, EVEN IF ROKT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR IF SUCH DAMAGES OR LOSSES ARE FORESEEABLE. YOU ARE WHOLLY RESPONSIBLE FOR THE CONDUCT AND CONTENT OF YOUR CAMPAIGN, INCLUDING ANY AND ALL CONTENT PRESENTED BY A PARTNER IN CONNECTION WITH YOUR CAMPAIGN. ROKT’S TOTAL LIABILITY TO YOU FOR DAMAGES OR LOSSES IN CONNECTION WITH ROKT’S PERFORMANCE OF THE SERVICES OR UNDER THIS AGREEMENT, WHETHER IN AN ACTION UNDER TORT, CONTRACT, WARRANTY, OR OTHER THEORY OF LIABILITY, WILL IN NO EVENT EXCEED $1,000 (ONE THOUSAND DOLLARS).

Force Majeure

25. Without limiting this Agreement, neither Party will be liable for any delay in performance or breach of this Agreement that arises as a result of a Force Majeure event. “Force Majeure” means any act of government of state, civil commotion, epidemic, fire, flood, natural disaster, war, or any event beyond the control of the party claiming to be excused from its obligations.
26. Each Party disclaims all liability and indemnification obligations for any harm or damages caused by any third party hosting providers.

Term and Termination

27. Either party may terminate this Agreement at any time with notice. Upon any termination of this Agreement, Rokt will stop providing, and You will stop accessing and using the Services. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees (if applicable), and (b) any outstanding balance (if applicable) for Service rendered through the date of termination will be immediately due and payable in full and (c) all of Your reporting or measurement data will no longer be available to You.

General

28. You may elect to receive Rokt marketing materials that Rokt sends from time to time. You also may unsubscribe from these materials at any time. By agreeing to this Agreement, You also acknowledge that You will receive certain service, billing, and administrative messages to Your nominated email or other address that may not be unsubscribed from.
29. Rokt may modify this Agreement or any additional terms that apply to the Services to, for example, reflect changes to the Services or changes to the law. You should review this Agreement regularly. Rokt will post notice of material modifications to this Agreement on the Rokt Platform or policies referenced in this Agreement at applicable URLs for such policies. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If You do not agree to the modified Agreement, You should discontinue Your use of the Services. No amendment to or modification of this Agreement by Rokt will be binding unless (i) You accept updated terms online, or (ii) You continue to use the Service after Rokt has posted updates to this Agreement or to any policy governing the Service. No amendment to or modification of this Agreement by You shall be binding unless in writing and signed by a duly authorized representative of Rokt (in which case those terms shall prevail to the extent of any inconsistency).
30. Clauses 7 through 26 will survive the termination or fulfillment of this Agreement. No delay or failure by a Party to enforce any provision of this Agreement will be deemed to be a waiver, create a precedent, or prejudice such party.
31. A notice may be sent by one party to the other by email or prepaid post, in the case of Rokt sending notice to You, by Your email or last known address as specified in the Rokt Platform, and, in the case of You sending notice to Rokt, to legal@rokt.com and the address of the applicable Rokt entity entering into this Agreement with You as specified in Clause 38 below.
32. You may not assign this Agreement, or any document referred to in this Agreement, without Rokt’s prior written consent. Any purported assignment made without the required consent from Rokt will be null and void.
33. The Parties to this Agreement are independent contractors. Neither party is an agent, employee, fiduciary, authorized representative, franchise, joint venture, or partner of the other party.
34. This Agreement, and all other documents referred to herein, comprise the entire agreement between the Parties. They supersede all prior understandings, agreements, or representations. The terms or conditions of any purchase order issued by You in connection with the Services will not apply.
35. Each provision of this Agreement is severable from every other provision in determining the enforceability of any provision.
36. This Agreement is governed by the law, jurisdiction, and venue set out in the table in Clause 38, without regard to conflict of laws principles that would require the application of the laws of another jurisdiction. You submit to the exclusive jurisdiction of the courts set out in that table.
37. If a dispute arises between the Parties, the Parties agree to give the other party written notice specifying the nature of the dispute. Prior to commencing proceedings in relation to such breach the parties agree to engage in mediation in accordance with the rules, and at the location, set out in Clause 38 below. This clause does not apply to debt recovery or an application for urgent interlocutory relief.

38. Table of Relevant Details