1. Products & Supplements
These Master Terms cover the services, data, documentation, software, reports, insights or other information that are included in a Supplement and anything that Company accesses or downloads via the foregoing (individually, a “Product” and collectively the “Products”). Subject to the terms of the Agreement, Company may use the Products solely as set forth in each Supplement and any applicable Additional Terms.
2. Accounts
Company will (a) provide true, current and complete account information; (b) promptly update that information if it changes; and (c) promptly notify Foursquare of any accidental disclosure or unauthorized use of Company’s access credentials. Company is responsible for keeping its access credentials secure and for all activities using those credentials.
3. Additional Terms, Other Services & Changes
3.1 – The Agreement includes any additional posted policies, guidelines, rules or end user license agreements applicable to the Products (collectively, the “Additional Terms”). The Additional Terms include the following:
Foursquare Attribution Additional Terms
Foursquare Audience Additional Terms
For clarity, the Agreement does not replace or supersede the Foursquare Enterprise User Interface Terms.
3.2 – Foursquare may update the Master Terms and Additional Terms by making the revised version available on this page, and an updated revision date will indicate that changes have been made. Except as to Supplements that are already in effect at the time of the update, the updated terms will take effect on the date of posting or on any later effective date stated in the update itself. Your use of the Services under Supplements that take effect after we publish changes means that Company consents to the updates.
4. Fees & Payment
This Fees & Payment section applies except to the extent that different terms are set forth in a Supplement or any applicable Additional Terms.
4.1 – Any applicable Product fees will be stated in a Supplement, otherwise provided to Company in writing or shown in the relevant interface for the Product. Company is responsible for all fees accrued under access credentials issued to Company. Company’s obligation to pay Foursquare is not contingent on if/when Company provides ACH information or, unless the Product is solely usage-based, first uses the applicable Product. If Company requires a Purchase Order (“PO”) to pay invoices, Company must issue the PO to Foursquare prior to the earlier of delivery of the Products, the start date shown in a Supplement, or the start of any applicable approved campaign.
4.2 – Unless a Supplement states otherwise: (a) Company will pay any fixed or minimum fees upon execution of the applicable Supplement, prior to the first delivery of the corresponding Product, and prior to the start of each anniversary of the Start Date of the applicable Supplement, and (b) where Foursquare invoices Company, Company will pay invoices in U.S. Dollars within thirty (30) days of receipt (or as otherwise stated in a Supplement). For any late payment, Foursquare reserves the right to charge interest of 2% over prime rate per month (or the legal maximum, whichever is lower), and/or suspend provision of the Products. Company will be responsible for any bank fees charged to Foursquare in connection with payments hereunder as well as reasonable out-of-pocket costs that Foursquare incurs to collect any unpaid bills.
5. Taxes
“Taxes” means taxes, levies, fees or duties of any nature based on or arising from the Products and/or the Agreement, not including taxes on Foursquare’s net income. Foursquare’s fees do not include Taxes. Foursquare may charge applicable Taxes in addition to its fees, unless Company provides timely, fully completed resale exemption documentation for the applicable jurisdictions. Except for Tax that Foursquare has charged to Company and that Company has actually paid to Foursquare, Company is responsible for remitting all Taxes. All payments shall be made without setoff or deduction, including for Taxes, unless Company is legally required to withhold Taxes from payments to Foursquare. In that case, Company will pay the additional amounts necessary to make each net payment to Foursquare (i.e., after Tax withholding) no less than the original amount of fees due. If Foursquare is held responsible for any Taxes, Company will reimburse Foursquare.
6. Intellectual Property
6.1 – As between the parties, Company owns all right, title and interest in and to its trademarks, service marks, logos, and trade names, properties and technology and any future developments and enhancements thereto, and Foursquare owns all right, title and interest in and to its trademarks, service marks, logos, and trade names, the Products (including underlying data), and any future developments and enhancements thereto. Each party reserves the right to continually evolve its products and technologies. Except as explicitly granted in the Agreement, nothing in the Agreement grants one party any right, title or interest in the other party’s products, technologies or intellectual property, and each party reserves all rights. All third-party trademarks, service marks, logos, and trade names are the property of their respective owners and their use within the Products is not meant to convey any relationship with or endorsement by such third parties. Except as expressly authorized by Foursquare, Company may not use or display any mark, name, trade name, or logo appearing within the Products without the owner’s prior consent or other legal authorization.
6.2 – Except as expressly prohibited herein, each party may use the information generated in the course of the Agreement for its respective business purposes, provided that such information is aggregated and anonymized (i.e., it does not disclose information that could reasonably identify the other party or an individual person). Foursquare shall not be prohibited from improving its products on the basis of general learning and know-how gained from the provision of Products to Company and Foursquare’s other partners. Foursquare may use any suggestions or feedback without accounting, attribution or compensation. As between the parties, Foursquare owns all right, title and interest in the Products, the underlying data, and any future developments and enhancements thereto. Except as explicitly granted above, nothing herein grants Company any right, title or interest in Foursquare’s technologies or intellectual property, and Foursquare reserves all rights. Foursquare may use suggestions or feedback without accounting, attribution or compensation to Company.
7. Company Materials
This Section applies if Company provides Foursquare with data, information or other materials (“Company Materials”).
Company will only provide Company Materials that Company has all necessary rights to provide for use by Foursquare to provide the Products and as described in the Agreement. Company represents and warrants that (a) Company fully owns or has the authority to provide Company Materials (whether directly or via Company’s third party service provider) and permit its use as set forth in the Agreement; (b) in obtaining Company Materials (including via a Foursquare-provided mechanism (e.g., SDK or pixel), if applicable) Company did not violate any applicable law, regulation or self-regulatory guidelines (including those from the Digital Advertising Alliance or Network Advertising Initiative, if applicable), or the rights of any third party; and (c) Foursquare’s use of the Company Materials to provide the Products and as provided herein will not violate any third party rights, Company’s third party agreements, Company’s privacy policy(ies) or any other privacy notices under which Company Materials were collected.
8. Compliance
8.1 – Each party will comply with applicable laws and regulations in connection with its activities hereunder, including posting and complying with a legally sufficient privacy policy and any other required notices. Neither party will knowingly introduce viruses or other malware to the other party’s systems or end users or infringe any third party intellectual property or other rights. Company shall not use the Products in a manner that would violate laws prohibiting discrimination or to determine adverse terms and conditions of or ineligibility for employment, credit, housing, health care treatment or insurance. For the avoidance of doubt, except as explicitly described in a particular Supplement, the parties do not intend for Company to provide Foursquare with data for incorporation into the Products.
8.2 – The Products are not designed with security and access management for processing the following categories of information (collectively, “Prohibited Data”): (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services and related technical data designated as defense articles or defense services; (c) ITAR (International Traffic in Arms Regulations) related data; (d) financial or payment information; (e) government–issued identification information; (f) online account access credentials; (g) medical, genetic or health insurance information, individual biometric data, data concerning a person’s sex life or sexual orientation or data that reveals racial or ethnic origin, religious or philosophical beliefs, or union membership, and any other information considered sensitive under applicable law or regulation unless expressly authorized in an Attachment; or (h)any data regarding a minor who is under thirteen (13) years of age or otherwise defined as a child under applicable privacy law. Company will not, and will not permit any person to, provide any Prohibited Data to Foursquare, or process any Prohibited Data through Foursquare’s systems.
8.3 – Company may not: (a) remove any proprietary notices or labels on the Products (including on any reports, insights or other information generated by the Products); (b) sell, resell, redistribute, or sublicense the Products or, except as provided in a Supplement, provide third parties (including clients) with access to the Products or Company’s access credentials; (c) scrape the Products or access the Products by any automated means; (d) attempt to obtain any data not displayed in the Products (e.g., underlying audience profiles); (e) interfere with the normal functioning of the Products, including by exceeding any technical limitations or controls; or (f) except to the extent applicable law requires otherwise, reverse engineer, decompile, disassemble, modify or adapt the Products or any underlying data, merge any Foursquare software into another program, or create derivative works of the Products or any underlying data.
9. Confidentiality
“Confidential Information” means information that the disclosing party (“Discloser”) identifies as confidential or the receiving party (“Recipient”) should reasonably understand to be confidential given the circumstances and the nature of the information. Foursquare Confidential Information includes all information (including any reports and analysis) accessible in or provided by the Products and all information in a Supplement. Company Confidential Information includes any Company Materials. Confidential Information does not include information that the Recipient can demonstrate: (a) it knew without restriction before receipt from the Discloser; (b) is publicly available through no fault of the Recipient; (c) it rightfully received from a third party without a duty of confidentiality; or (d) is independently developed without use of or reference to Confidential Information. The foregoing exceptions do not expand the permitted uses of the Products. The Recipient may use Confidential Information only as explicitly permitted in the Agreement and to fulfill its obligations under the Agreement and must use at least reasonable care to prevent any unauthorized use or disclosure of Confidential Information, but in any event no less stringent a standard than Recipient applies to its own Confidential Information. The Recipient may share Confidential Information with employees, agents and contractors who need to know it, as long as they are bound to confidentiality obligations that are consistent with the Agreement, but Recipient shall remain primarily liable and responsible for parties in connection therewith. If compelled by law, the Recipient may disclose Confidential Information as long as it provides reasonable prior notice to the disclosing party (unless legally prohibited). Any location data, device-level data, and/or user-level data provided by Foursquare constitutes Foursquare Confidential Information even though such data may include or make use of facts that are publicly available, provided that nothing herein shall restrict Company from sourcing data similar or identical to such data so long as Company does so without referencing the Products. Company will only share data, reports, insights or other information generated by the Products with third parties (including clients) if permitted in the applicable Additional Terms or a Supplement.
10. Warranties; Disclaimers
10.1 – Each party represents and warrants to the other that: (a) it is duly organized and in good standing under the laws of the jurisdiction of its organization; (b) it has all corporate authority to execute and perform the Agreement; and (c) its execution of the Agreement will not conflict or violate any other agreement to which such party is a party.
10.2 – THE FOURSQUARE PARTIES AND THEIR SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, BUSINESS PARTNERS, VENDORS, CLIENTS, LICENSORS, AND ADVISORS (“FOURSQUARE ENTITIES”) PROVIDE ALL PRODUCTS ‘AS IS’ AND ‘AS AVAILABLE’, WITHOUT WARRANTY OF ANY KIND, AND DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. ADDITIONALLY, WITH RESPECT TO ANY PRODUCTS IN BETA WHICH FOURSQUARE MAY FROM TIME TO TIME MAKE AVAILABLE TO COMPANY HEREUNDER, COMPANY EXPRESSLY UNDERSTANDS AND ASSUMES ANY RISK THAT SUCH PRODUCTS IN BETA MAY NOT BE FULLY TESTED AND MAY BE INHERENTLY LESS RELIABLE THAN OTHER FOURSQUARE PRODUCTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT.
11. LIMITATION OF LIABILITY & DAMAGES
EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF VIOLATIONS OF THE LICENSES GRANTED TO COMPANY DESCRIBED IN APPLICABLE SUPPLEMENTS, OR THE ‘COMPLIANCE’ AND ‘CONFIDENTIALITY’ SECTIONS HEREIN, (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF THE CAUSE OF ACTION AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, AND (B) EXCEPT FOR COMPANY’S OBLIGATION TO PAY ANY MINIMUM FEES AND FEES FOR PRODUCTS ALREADY PROVIDED, IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THE AGREEMENT EXCEED THE AMOUNT PAID OR OWED BY COMPANY UNDER THE AGREEMENT FOR THE 12 MONTHS PRIOR TO THE DATE THAT THE CAUSE OF ACTION AROSE. THESE LIMITATIONS OF LIABILITY APPLY EVEN IF ANY REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12. Mutual Indemnity
12.1 – Foursquare will indemnify, defend and hold harmless Company, its officers, directors, employees and representatives from any liability or expense (including reasonable attorney’s fees) (“Liabilities”) from any third party claim that Products in the form provided by Foursquare infringe third party U.S. intellectual property rights. Foursquare shall have no obligation for claims arising from or related to: (a) compliance with Company specifications; (b) an adaptation or modification of the Products or combination of the Products with products or services not supplied by Foursquare, where the cause of action would not have arisen but for such adaptation, modification or combination; (c) Company’s failure to follow instructions provided by Foursquare which would have cured the cause of action, provided that following such instructions would not have caused Company substantial additional cost; or (d) Company’s continued use of a version of the Products other than the most recently released version, where the cause of action would not have arisen if such recently-released version had been used ((a)-(d) are the “Excluded Claims”).
12.2 – Company will indemnify, defend, and hold harmless the Foursquare Entities from any Liabilities from any third party claim arising out of or related to (a) any Company Materials; (b) Company’s advertising, products, services and any code relating thereto, (c) Company’s use of the Products other than as expressly authorized in the Agreement; (d) Company’s creation and/or use of any information derived from the Products; (e) disputes between Company and Company’s third party service providers (including identity resolution and data delivery services) and/or end users of Company’s products and services, and (f) any Excluded Claims.
12.3 – Each party’s indemnification obligations are conditioned upon: (a) the indemnified party providing the indemnitor with prompt written notice of any claim (provided that the failure to promptly notify will only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure); (b) indemnitor having sole control and authority with respect to the defense and settlement of any such claim; and (c) the indemnified party cooperating fully with indemnitor, at indemnitor’s sole cost and expense. The indemnitor will not, without the prior written consent of the indemnified party (not to be unreasonably withheld or denied), agree to any settlement of any such claim that does not include a complete release of the indemnified party from all liability or that imposes any admission, liability, obligation or restriction on the indemnified party. The indemnified party may participate with its own counsel, at its own expense.
12.4 – If a Product is held in a suit or proceeding to infringe any intellectual property rights or other rights of a third party, or Foursquare reasonably believes that it is likely to be found to do so, then Foursquare may, at its sole cost, expense and option, either: (a) procure the right to continue using such Products, or (b) modify such Products so that it becomes non-infringing without affecting the basic functionality; provided, however, that if (a) and (b) are not practicable, Foursquare may, in its sole discretion, terminate the Agreement with respect to such Products by giving Company thirty (30) days written notice, upon which termination Foursquare shall refund the portion of such pre-payment that reflects the remaining license term. Foursquare’s obligations as stated in this Mutual Indemnity section are Company’s sole remedy and Foursquare’s sole liability arising out of or relating to such infringement claims.
13. Termination
A party may terminate the Agreement upon prior written notice if there are no current Supplements outstanding. A party may also terminate the Agreement (including all Supplements) immediately (a) if the other party is in material breach, has been given a notice of such material breach, and has failed to cure within thirty (30) days (or five (5) days if Company does not pay overdue amounts in full within five (5) days of receiving a default notice), or immediately if such material breach cannot be remedied, or (b) upon the other party’s bankruptcy, insolvency or assignment for the benefit of creditors. Immediately upon termination of the Agreement, Company will discontinue use of all Products and delete all data and software associated with Products. If any applicable Supplement is terminated for Company’s uncured breach, Company will promptly pay any minimum amounts that would have been due for the full duration of the then-current term of such Supplement as it existed prior to the early termination. Sections of the Agreement that by their nature would survive expiration or termination of the Agreement shall survive, including Sections 4-6, 9-13, 15.3, 15.4 and 15.5.
14. Marketing and Publicity
Company will not use Foursquare’s name or logo without prior written permission. All goodwill from the use of Foursquare’s name or logo inures to Foursquare. Foursquare may include Company’s name and logo to identify Company as a Foursquare partner in lists of Foursquare partners on its website, in media, and in marketing materials provided to individual customers/potential customers. Unless a Supplement specifies otherwise, neither party will make a press release or other public statement about the Agreement without the other party’s prior written agreement (email sufficing).
15. General
15.1 – Export; Sanctions; Anti-Bribery. Company represents and warrants that Company is not included on any sanctions or denied parties lists maintained by the U.S. or foreign agencies and authorities. Company further acknowledges that the Products may be subject to export control and sanctions laws and regulations of the U.S. or foreign agencies or authorities. If Company exports, reexports or otherwise transfers Products, Company will be responsible for complying with and obtaining any authorizations required by applicable laws and regulations. Foursquare may suspend its performance under this Agreement to the extent required by laws applicable to either party. Additionally, each party will comply with all anti-corruption and anti-bribery laws of the countries in which the companies operate, including without limitation, the U.S. Foreign Corrupt Practices Act.
15.2 – Force Majeure. Aside from payment obligations, neither party will be liable for failure or delay in performance due to causes beyond its reasonable control, including without limitation: acts of God, terrorism, war, riots, fire, earthquake, flood or failure of internet or communications infrastructure.
15.3 – Notices. Notices must be in writing and are effective when: (a) delivered personally; or (b) sent by email to the address provided by the receiving party (legal@foursquare.com for Foursquare with the subject line ‘LEGAL NOTICE’). If the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective as long as the sending party used the last email address provided by the other party for the express purpose of receiving notices and attempts to reach the receiving party by phone or by forwarding the notice to the contact email address on the receiving party’s website. Company must ensure that Company’s contact and account information is current and correct, and promptly notify Foursquare in writing of any changes to such information. If Company provide a physical address, that address will constitute Company’s shipping address unless Company notifies Foursquare of a different shipping address.
15.4 – Dispute Resolution. The Agreement is governed by the State of New York, excluding conflicts of laws principles. The exclusive venue for any action arising under or related to the Agreement or the Products will be (and the parties hereby consent to personal jurisdiction in) New York, New York. Actions arising under or related to the Agreement or the Products must be brought in the initiating party’s individual capacity, not as a plaintiff or class member in any class action or similar proceeding, and shall be resolved by arbitration under the Commercial Dispute Resolution Procedures of the American Arbitration Association and the Rules for Emergency Measures of Protection. The arbitration will be decided by a single arbitrator whose decision will be final and binding. The arbitration will be confidential except as required by law. The prevailing party is entitled to reasonable attorney’s fees and costs.
15.5 – Miscellaneous. The Agreement is the entire agreement of the parties relating to this subject matter and it supersedes all other commitments and understandings with respect to such subject matter. To the extent that (a) the Additional Terms conflict with these Master Terms, the Additional Terms will control and (b) a Supplement conflicts with these Master Terms or the applicable Additional Terms, the Supplement will control. The parties acknowledge and agree that they have been represented in the negotiation and execution of the Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such counsel. The Agreement cannot be amended except by a writing signed by both parties. This Agreement and the licenses granted herein are not transferable or assignable without prior written consent of the non-assigning party; provided, however, that either party upon written notice to the other party may assign this Agreement to an acquirer of substantially all of that party’s assets, stock or business to which this Agreement or an Attachment relates by sale, merger or otherwise or to an affiliate. Notwithstanding the foregoing, Foursquare may terminate this Agreement immediately upon notice to Company if Company assigns this Agreement to a Foursquare competitor or if Company becomes owned or controlled by a Foursquare competitor. Foursquare’s failure to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of the Agreement will be effective only if made explicitly, in writing and signed by Foursquare. There are no third party beneficiaries to the Agreement. If any provision of the Agreement is unenforceable, the validity of the remaining provisions will not be affected.