These Terms of Service (the "Agreement") are agreed to and accepted by and between Barometric®, a division of AdTheorent, Inc., a Delaware corporation located at 155 Avenue of the Americas, 2nd Floor, New York, NY 10013, ("Barometric") and the Barometric Client ("Licensee") identified in the accompanying Registration Form with respect to Client's use of the Barometric Invalid Traffic Report Service (the "Barometric-IVT Service" or the "Service"). Barometric and Licensee may be referred to in this Agreement individually as a "Party" and together as the "Parties."
This Agreement is subject to change from time to time, in which case we will post an updated version to our Web site at https://fivt.barometric.com/terms. Changes to this Agreement will take effect 14-days after the updated Agreement is posted to our Web site.
Definitions Applicable to Terms of Service
"Account" refers to all web Properties maintained by a given Licensee.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential." However, Confidential Information will not include any aggregated statistical information or anonymized data captured by the Service or information or data that (i) is or becomes known to the general public, (ii) is already in the receiving party's possession prior to disclosure by a party or (iii) is independently developed by the receiving party without the use of Confidential Information.
"Customer IVT Data" means the data concerning the characteristics and activities of Visitors that is collected through use of the Barometric-IVT Service and then forwarded to the Servers and analyzed by the Processing Software.
"Documentation" means any accompanying documentation made available to Licensee by Barometric for use with the Processing Software, including any documentation available online.
"Processing Software" means the Barometric server-side software and any upgrades, which analyzes the Customer IVT Data and generates the Reports.
"Property" means a group of web pages and apps that are linked to an Account and use the Barometric Service.
"Report" means the resulting analysis provided by Barometric which identifies, with respect to a given Property, the IVT score or percentage of invalid traffic as determined by the Barometric IVT Service.
"Servers" means the servers controlled by Barometric (or its wholly owned subsidiaries) on which the Processing Software and Customer IVT Data are stored.
"Service" means the Barometric-IVT Service.
"Software" means the Barometric Code and the Processing Software.
"Third Party" means any third party (i) to which Licensee provide access to Licensee's Account or (i) for which Licensee use the Service to collect information on the third party's behalf.
"Barometric Code" means Barometric's tracking pixel, which is installed on a Property for the purpose of collecting Customer IVT Data, together with any fixes, updates and upgrades provided to Licensee.
"Visitors" means visitors to Licensee's Properties.
The words "include" and "including" mean "including but not limited to."
Barometric-IVT Services Generally
The Barometric IVT Service is designed to assist Licensee's in evaluating the extent to which one or more Properties receives fraudulent or otherwise invalid traffic (the "Barometric IVT Service"). Licensee's access to the Barometric IVT Service enables Licensee to create Barometric Pixels (Barometric Code) to be used on Properties to measure IVT, and to access Reports about the same through the Barometric reporting portal. These Terms of Service apply to each Client of Barometric who desires to use the Barometric-IVT Service.
Non-Exclusive License During Licensee Insertion Order Campaign Term
Subject to the terms and conditions of this Agreement: (a) Barometric grants Licensee a limited, revocable, non-exclusive, non-sublicensable license, to install, copy and use the Barometric Code solely as necessary for Licensee to use the Service on Licensee's Properties or Third Party Properties; and (b) Licensee may access, view and download Licensee's Reports. Licensee will comply with all applicable laws and regulations in Licensee's use of and access to the Documentation, Software, Service and Reports.
Licensee will not (and Licensee will not allow any third party to), at any time: (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which Licensee are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; or (vi) use data labeled as belonging to a third party in the Service for purposes other than generating, viewing, and downloading Reports.
For a limited introductory period and unless otherwise agreed between Barometric and Licensee (or until this Agreement is modified by Barometric), there are no Fees applicable to Licensee's use of the Barometric-IVT Services. If this Agreement is changed in a manner to make Fees applicable, such Fee change will be applicable prospectively.
Confidentiality & Data Use
Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
Barometric may use anonymized data collected by the Service for internal business purposes and to improve the performance of the Service, as long as such data does not identify Client.
If Licensee uses the Service on behalf of a Third Party then Licensee represents and warrants that (a) Licensee is authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that Licensee has under this Agreement, (b) Barometric may share with the Third Party any Customer IVT Data that is specific to the Third Party's Properties, and (c) Licensee will not disclose Third Party's Customer IVT Data to any other party without the Third Party's consent.
Information Rights; Publicity; Privacy
Intellectual Property Rights
The Service, which includes the Software and all Intellectual Property Rights therein are, and will remain, the property of Barometric. All rights in and to the Software not expressly granted to Licensee in this Agreement are reserved and retained by Barometric and its licensors without restriction, including, Barometric's right to sole ownership of the Software and Documentation. Without limiting the generality of the foregoing, Licensee agrees not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Barometric; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Barometric (or its wholly owned subsidiaries) other than in the name of Barometric (or its wholly owned subsidiaries, as the case may be); or (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
Termination of License Rights
Either party may terminate this Agreement at any time with notice. Upon any termination of this Agreement, Barometric will stop providing, and Licensee will stop accessing, the Service. In such event, Licensee will delete all copies of the Barometric Code from all Properties and certify thereto in writing to Barometric within 3 business days of such termination. In the event of any termination, to the extent applicable: (a) Licensee will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Term will be immediately due and payable in full and (c) all of Licensee's historical Report data will no longer be available to Licensee.
Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, ADTHEORENT 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.
Limitation Of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ADTHEORENT WILL NOT BE LIABLE FOR LICENSEE'S LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF ADTHEORENT OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. ADTHEORENT'S (AND ITS WHOLLY OWNED SUBSIDIARIES' TOTAL CUMULATIVE LIABILITY TO LICENSEE OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO ADTHEORENT BY LICENSEE FOR THE SIX MONTH PERIOD PRIOR TO THE ACTS OR OMISSIONS GIVING RISE TO LIABILITY.
Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable. The descriptive headings contained in this Agreement are for convenience and reference only and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of New York and, as applicable, the United States of America.
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