Foursquare Advertising Terms and Conditions - Foursquare for Business
Each individual or entity ("Customer") who places any insertion orders or order forms or who enters into any service agreement (each, an "Order") with Foursquare Labs, Inc. ("Foursquare") for the placement of one or more advertisements ("Ad(s)") through Foursquare’s Promoted Products Program (as defined below) on the foursquare® service (“Service”) enters into an agreement with Foursquare, by virtue of placing such Order, to abide by these Advertising Terms and Conditions ("Terms"). For purposes of these Terms, all references to “Customer” includes any employee, independent contractor, agency or other third party agent of any entity that acts on behalf of such entity, as applicable.
These Terms govern Customer's participation in Foursquare’s “Promoted Products” Program (“Program”) including, as applicable, any advertising information and data submitted to Foursquare by or on behalf of Customer, any Orders for Promoted Products, and/or Customer's management of any advertising campaigns related thereto. Foursquare and Customer hereby agree and acknowledge:
2. Promoted Products. The Program enables advertisers to place their Ads on the Foursquare® service (“Service”) or on websites owned and/or operated by a network of publishers who have agreed to let Foursquare sell their media inventory to such advertisers ("Promoted Products"). Promoted Products will be served by Foursquare and its partners through the Program. Customer understands that Ads may be placed on the Service or on any content or property provided by any third party publisher participating in the aforementioned publisher network upon which Foursquare places advertisements (“Publisher Property”) and Customer hereby authorizes and consents to Foursquare making any and all such placements. Customer shall communicate only with Foursquare regarding Promoted Products that Customer places through the Program.
Each Order and any campaign information submitted (as modified by Customer, or if not modified, as initially posted) in connection with the Program is deemed approved by Customer. Customer shall protect any Customer account information, including but not limited to passwords, and is solely responsible for its own use and any third party’s use of its accounts, including but not limited to any modifications made to its account(s) by its employees, independent contractors, agents, agencies or any other third parties allowed by Customer to access or use its account(s). Customer is also solely responsible for: (i) all Promoted Product content and Promoted Product information ("Creative"), (ii) if applicable, all click URLs, web sites, services and landing pages which Creative links or directs viewers to, and advertised services and products (collectively "Customer Services"); and (iii) communications directed by it to third parties.
Foursquare may modify the services offered through the Program at any time without liability. Should such a modification occur with or without notice, as Customer’s and, if applicable, its Principal’s, sole and exclusive remedy and Foursquare’s sole and entire liability for such change, Customer may elect to cancel the remainder of the affected placement, without penalty, in accordance with Section 3 below.
3. Termination. This Agreement is effective until terminated. Unless specified otherwise in the applicable Order, either party may terminate this Agreement by providing thirty (30) days’ written notice. Foursquare may reject or remove any Ad for any reason. Foursquare may also cancel any Order, any or all of the services provided through the Promoted Products program, or these Terms at any time immediately upon notice. In the event of any cancellation of any Order, services or these Terms by Foursquare, Customer will still be responsible for payments on any Promoted Products already run up to and including the effective date of any such cancellation. Sections 1, 5-11, the last two sentences of the second paragraph of Section 2, and the last two sentences of this Section 3 will survive any expiration or termination of these Terms.
4. Prohibited Uses; License Grant; Representations and Warranties. Customer shall not, and shall not authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks, likes, blocks or other actions (collectively “User Actions”); (b) use any automated means or form of scraping or data extraction to access, query or otherwise collect Foursquare advertising related information from the Service except as expressly permitted by Foursquare; or (c) advertise anything illegal or engage in any illegal or fraudulent business practice. Foursquare may modify a Promoted Product to comply with Foursquare’s policies or this Agreement, provided, such modifications will only be in the form of deleting a Promoted Product in its entirety, resizing, or reformatting solely in connection with the Program. Foursquare or its partners may reject or remove any Promoted Product that does not comply with these Terms, including, without limitation, its Promoted Product Guidelines, or that in Foursquare's sole reasonable judgment, do not comply with applicable law, regulation, or other judicial or administrative order.
Customer represents and warrants that it holds, and hereby grants Foursquare, all rights (including, without limitation, any copyright, trademark, patent, publicity or other proprietary or intellectual property rights) and licenses to use all Creative and Customer Services as necessary for Foursquare to operate the Promoted Products program on Customer’s behalf (including, without limitation, any rights or licenses needed to use, host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from or derivative works of Creative or to use, reproduce, display, distribute and disclose Customer’s trademarks and other brand identifiers) in accordance with these Terms ("Use").
Customer represents and warrants that: (i) all information provided by or on behalf of Customer to Foursquare in connection with Customer’s participation in Promoted Products is complete, correct and current; and (ii) neither any of Customer’s Creative or Customer Services, nor any authorized Use thereof by Foursquare, will violate or encourage or induce violation of any applicable laws, regulations, codes of conduct, or third party rights (including, without limitation, intellectual property rights). Violation of the foregoing may result in immediate termination of these Terms or Customer's account without notice and may subject Customer to legal penalties and consequences.
5. DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FOURSQUARE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, WITH RESPECT TO THE PROGRAM. Without limiting the foregoing, Foursquare hereby disclaims all guarantees regarding positioning, levels, quality, and timing of: (a) number of Customer’s Promoted Products; (b) costs per User Action; (c) action rates; (d) availability and delivery of any impressions or Promoted Products on the Service or section thereof; (e) number of User Actions; (f) conversions or other results for any Promoted Products; and (g) the adjacency or placement of Promoted Products on the Service or otherwise within the Promoted Program.
6. Limitation of Liability. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 10 OF THESE TERMS AND CUSTOMER'S BREACHES OF SECTION 2 OF THESE TERMS, TO THE FULLEST EXTENT PERMITTED BY LAW: (A) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS, REVENUE, INTEREST OR GOODWILL, FOR ANY LOSS OR CORRUPTION OF DATA, OR FOR ANY LOSS OR INTERRUPTION TO CUSTOMER'S BUSINESS, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (B) EACH PARTY'S MAXIMUM LIABILITY TO THE OTHER IS LIMITED TO THE AMOUNTS PAID OR PAYABLE TO FOURSQUARE BY CUSTOMER FOR THE AD GIVING RISE TO THE CLAIM. In addition, Foursquare will not be responsible or liable for any errors or omissions in any information submitted by Customer in connection with its participation in the Promoted Products program and, except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including, without limitation, acts of God, government, terrorism, natural disaster, labor conditions and power failures.
7. Agents. For Customers who are not agencies or agents of third parties, this Section 7 shall not apply. Customer represents and warrants that (a) it is authorized, as agent, to act on behalf of and has bound to these Terms any third party for which Customer advertises (a "Principal"), (b) as between Principal and Customer, the Principal owns all rights in and to any information associated with such Promoted Products resulting from Customer’s participation in the Program, and (c) Customer shall not disclose Principal's Promoted Products related information to any other person or entity without Principal's consent.
8. Payment. Customer shall be responsible for all charges incurred in connection with an Order in immediately available funds or as otherwise approved by Foursquare, within a reasonable time period specified by Foursquare (e.g. in the Program user interface or Order) and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). In the event Customer pays by credit card, Customer agrees that if it seeks to chargeback or recover such payment Customer shall be responsible for any fees incurred by Foursquare as a result of the same. Charges are exclusive of taxes. Customer is responsible for paying all (i) taxes and other government charges, and (ii) reasonable expenses and attorneys and collection fees Foursquare incurs collecting late amounts. Nothing in these Terms or an Order may obligate Foursquare to extend credit to any party.
Charges are based solely on Foursquare's measurements for the applicable Ads served via the Promoted Products program. In the event Customer disagrees with any of Foursquare's measurements upon which an actual charge is or will be based, including, without limitation, any charges based on suspected invalid impressions or clicks on Customer’s Ads, then Customer shall, within 30 days after identifying any such disputed numbers, send Customer's measurements and, if applicable, the methodologies used to reach them to the attention of Promoted Products Program. Foursquare will facilitate a reconciliation effort. To the fullest extent permitted by law, refunds (if any) shall be in the form of either a cash refund or a Program credit. Any failure by Customer to notify Foursquare of any discrepancy or dispute with respect to any charge within 30 days after Foursquare’s issuance of the related invoice shall be deemed, to the maximum extent permitted by applicable law, a waiver by Customer of any and all claims it has or may have with respect to those specific charges.
Customer acknowledges and agrees that any billing and payment information that Customer provides to Foursquare may be shared by Foursquare with companies who work on Foursquare's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Foursquare and servicing Customer's account. Foursquare may also provide such information in response to legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights, to protect itself or third parties, or defend against legal claims. Foursquare shall not be liable for any use or disclosure of such information by such third parties. Foursquare will use commercially reasonable efforts to provide regular weekly reports and a monthly report to Customer which will set forth the actual charges assessed for such month.
9. Confidential Information. Due to its experimental nature, much of the Program is confidential to Foursquare, as further described herein. “Confidential Information” means any business or technical information related to Foursquare, the technology used to provide the Service, and the Program that is marked or identified as “confidential” or “proprietary” at the time of disclosure, or, by its nature or content would be reasonably be understood to be confidential or proprietary. Without limiting the foregoing, the following shall be deemed Confidential Information: information on Foursquare metrics and user demographics, the terms of this Agreement, IOs, invoices and correspondence with Foursquare. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by Customer; (b) is rightfully known by Customer at the time of disclosure without an obligation of confidentiality; (c) is independently developed by Customer without use of the Confidential Information; or (d) Customer rightfully obtains from a third party without restriction on use or disclosure. Customer will not use the Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Customer will use all reasonable efforts to maintain the confidentiality of all such Confidential Information, but in no event less than the efforts that Customer ordinarily uses with respect to Customer’s own proprietary information of similar nature and importance.
10. Indemnification. Customer will indemnify and defend Foursquare, our partners, agents, affiliates, and licensors from any third party claim or liability, arising out of Customer’s Promoted Products, Creatives, Foursquare’s use of Promoted Products, Creatives for the Program, Customer’s use of the Program and Customer’s breach of this Agreement. Partners will be third party beneficiaries of the above partner indemnity.
11. Miscellaneous. These Terms will be construed as if both parties jointly wrote them and will be governed by and subject to the laws of the State of New York without regard to its conflict-of-laws rules (other than Section 5-1401 of the New York General Obligations Law). All claims arising out of or relating to these Terms or the Program shall be litigated exclusive in the federal or state courts located in the southern district of New York, USA, and Foursquare and Customer and, if applicable, its Principal, consent to personal jurisdiction in those courts. These Terms, including any Foursquare policies and Orders expressly incorporated herein, constitute the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof except for those which are expressly incorporated by reference. In the event of a conflict between these Terms and any Order, terms in an Order shall prevail over any conflicting or additional terms in these Terms. No statements or promises have been relied upon in entering into this agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g., reference to a purchase order number) or oral discussions are void. Any notices to Foursquare must be sent via first class or air mail or overnight courier to Foursquare Labs, Inc., 568 Broadway, 10th Floor New York NY 10012, attn: Promoted Products Program, and are deemed given upon receipt. Notice to Customer may be effected by sending an email to the email address specified in Customer's account, and is deemed received when sent (for email). A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of these Terms will remain in full effect. Either party may assign its rights and responsibilities under these Terms upon notice to the other party. Foursquare and Customer are not legal partners or agents of one another, but rather are independent contractors. In the event that these Terms expire or are terminated, Foursquare shall not be obligated to return any advertising materials to Customer.
Additional Terms for Promoted Places and Place-Based Ads:
For the purposes of this IO, an "Action" for Promoted Places shall mean the following:
1. A Promoted Place is served to a user of the Service and the user taps anywhere on it; or
2. A Promoted Place is served to a user of the Service and the user subsequently visits one of the locations that the campaign associated with the Promoted Place is running within 30 days after the impression being served.
Actions are only counted for 1 or 2, not both.
For purposes of this IO, an "Action" for Place Based Ads shall mean the following:
A Place-Based Ad is served to a user of the Service and the user taps anywhere on it.
Note that all Promoted Products in a campaign will stop being served on the specific end date of the campaign, however, the Foursquare system will determine during the 30 days after the end date if any visits associated with a Promoted Product served prior to the end date occurred. For this reason, billing activity is closed out at least 30 days after the final impression has run.
Additional Terms for Card Offers:
In order for Foursquare and/or Foursquare’s third party vendors to provide Card Offers in connection with the Program, Advertiser must complete the Merchant Authorization for Release of Data form attached below.
Advertiser acknowledges that any payments to the user in connection with a Card Offer are the responsibility of Advertiser in addition to the amounts owed to Foursquare and such payments to users will be made promptly after an Action occurs. For example, if Advertiser runs a “Spend $100, get $10” campaign and a user performs an Action, (1) $10 will be subtracted from the amounts owed by the user to the applicable merchant immediately through the First Data OfferWiseSM solution and (2) Advertiser will pay Foursquare the Net Rate Per Action in accordance with the payment terms of this Agreement.
For the purposes of this IO, an "Action" for Card Offers shall mean the following has occurred:
1. A user loads the Card Offer; AND
2. A user swipes their credit card within 3 hours after the Card Offer is served in connection with a purchase that qualifies for the Card Offer (e.g., if the Card Offer is “Spend $100, get $10”, the purchase associated with the card swipe must be at least $100).