FOURSQUARE TRIAL AND EVALUATION TERMS
Last Updated: January 31, 2023
If you have already entered into a separate contract that covers the Trial Materials (defined below) and that contract has not expired or terminated (an “Existing Contract”), that Existing Contract will govern your use of the Trial Materials instead of the Foursquare Trial and Evaluation Terms below (“Terms”).
ARBITRATION NOTICE: THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT PROVISION, YOU AND FOURSQUARE AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND FOURSQUARE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Except for any Existing Contract, these Terms are a legally binding contract between you and Foursquare Labs, Inc. (“Foursquare”). By indicating your agreement to these Terms, and/or by using, accessing or downloading the Trial Materials (directly or through a third party service provider) where these Terms are incorporated by reference, you are agreeing to be bound by these Terms.
These Terms cover your use of Foursquare’s Trial Materials (defined below). If you are using the Products on behalf of an organization (e.g., your employer or other entity), you are agreeing to these Terms for that organization and representing to Foursquare that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization).
1.1. “Confidential Information” means information that Foursquare (“Discloser”) identifies as confidential or that you (“Recipient”) should reasonably understand to be confidential given the circumstances and the nature of the information. 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 the Discloser’s Confidential Information.
1.2. “Trial Materials” means, as applicable, the data (e.g., point of interest data, visit data, ad targeting audiences, etc.), software and/or documentation provided to you or accessed by you (and the associated access credentials) pursuant to these Terms (e.g., under an order form, from an online marketplace, or via user interface, in each case that references these Terms).
- License and Restrictions
2.1. Subject to these Terms, during the Term, Foursquare grants you a non-exclusive, non-sublicensable, non-transferable license to access and use the Trial Materials internally for the purpose of evaluating whether to enter into a commercial license with Foursquare and as expressly permitted below. In the event the Trial Materials include the Foursquare studio software (“Foursquare Studio”), you will be enabled to create user-generated Maps Content (as defined in the Foursquare Studio Terms of Service) which may also be used for evaluation purposes. This license does not permit you to share the Trial Materials with third parties or use the Trial Materials in live or commercial production.
2.2. To the extent the Trial Materials consist of point of interest data (“POI Data”) and/or aggregated visitation information to points of interest, retail chains or geographies (“Aggregated Data”), you may also use such POI Data or Aggregated Data, as applicable, to create external reports, analyses and demos, so long as you: (a) provide Foursquare with branded attribution in connection with such data, (b) do not share material portions of such data with third parties (as used herein, “material portions” means a set of data that could be marketed independently), (c) do not use such data to create a point of interest database or other products that are competitive with Foursquare’s offering of the same, (d) do not sell or otherwise monetize such materials, and (e) do not permit third parties to download or export material portions of such data. For clarity, POI Data and Aggregated Data shall expressly exclude any device or user identifiers (which must only be used internally).
2.3. To the extent the Trial Materials include hashed IDs (“Hashed ID Data”), you shall not: (a) share Hashed ID Data with any third party, (b) combine it with any other data, or (c) use the Hashed ID Data to track or depict the locations or actions of an individual. You will use only the most recent Hashed ID Data provided by Foursquare and promptly delete any older Hashed ID Data.
2.4. To the extent the Trial Materials include any software (“Software”), you may also distribute the Software in object code form as part of your evaluation. You shall not: (a) interfere with, circumvent, modify, disrupt or disable features or functionality of the Software, or (b) attempt to discover any Software source code.
2.5. Except as expressly set forth in this Section 2 (and if applicable, Section 3 below), you may not integrate or use the Trial Materials for any other purpose without Foursquare’s prior written consent.
- Audience Data for Ad Targeting
3.1. To the extent Foursquare provides you with an encryption key for Hashed ID Data, subject to these Terms, during the Term, Foursquare grants you a non-exclusive, non-sublicensable, non-transferable license to (a) use the encryption key internally, solely to decrypt Hashed ID Data (such decrypted data, “Audience Data”); and (b) use the Audience Data for Ad Targeting of Approved Campaigns. “Ad Targeting” means the targeting of an advertisement to an audience of end users or the creation of an audience for use in such targeting. “Approved Campaigns” means ad campaigns approved by Foursquare in advance in writing.
3.2. You shall not share the decryption key with any third party and you will delete the decryption key promptly once no longer needed. The decryption key constitutes Foursquare’s Confidential Information.
3.3. You will: (a) only use Audience Data based on the most recent Hashed ID Data provided by Foursquare and promptly delete any older Audience Data; (b) not combine Audience Data with any other data except other targeting data solely for purposes of Ad Targeting, provided such other data does not include any data about an identified individual other than a device identifier; (c) not create or augment user profiles or audience segments (including “lookalike” audiences) using any information generated by or derived from use of Audience Data; or (d) not share Audience Data with any third party except Authorized Platforms.
3.4. Use of Audience Data for Ad Targeting is restricted to platforms that Foursquare has approved in writing (collectively, “Authorized Platforms”). In connection with your use of Audience Data via Authorized Platforms, you will: (a) comply with all applicable platform terms and policies; (b) be primarily liable for the acts and omissions of any Authorized Platform that receives the Audience Data from you and violates these Terms; and (c) provide any usage reporting required by Foursquare.
3.5. In connection with Audience Data, each party shall comply with all applicable self-regulatory principles and guidelines of the Digital Advertising Alliance and the Network Advertising Initiative Code of Conduct.
- Additional Requirements
4.2. You may not remove any proprietary notices or labels from the Trial Materials, reverse engineer, decompile, disassemble, modify, adapt or create derivative works of the Trial Materials, or combine the Trial Materials with any other data such that the Trial Materials may no longer be identified or removed. In addition, as to any Trial Materials that include device or other online identifiers (including hashed IDs), you shall not combine such Trial Materials with any information that, alone or combined with the Trial Materials, could reasonably allow any individual to be identified. You may not infringe the intellectual property rights of any third party while using the Trial Materials.
4.3. You will use industry-standard security measures designed to protect against unauthorized access, loss and misuse of the Trial Materials, including encryption of stored information and organizational, contractual, technological and managerial safeguards. For the avoidance of doubt, under no circumstances will you share login information for any Trial Materials with any third party (or otherwise provide any third party with access to the Trial Materials).
4.4. Except as limited in Section 2 above, if the Trial Materials included Foursquare Studio, your use the same and any user-generated Maps Content shall be subject to the terms and conditions located at https://location.foursquare.com/legal/terms/foursquarestudio-terms-of-service/ (as may be updated from time to time, the “Foursquare Studio Terms of Service”), which are incorporated by reference herein. For clarity, these Terms shall control with respect to any user-generated Maps Content created during the Term. To the extent you continues to use Foursquare Studio after the Term, so long as the parties have not entered into a written license agreement related thereto, the Terms of Service shall exclusively control such use.
4.5. For as long as the Recipient is in possession of Confidential Information, the Recipient may use Confidential Information only for the purposes permitted herein 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 similar confidential information. The Recipient may share Confidential Information with its employees, agents and contractors who need to know it for the purposes permitted herein, as long as they are bound to confidentiality obligations that are consistent with these Terms, and provided that the Recipient shall remain responsible for their compliance with these Terms. If compelled to do so by law, the Recipient may disclose Confidential Information as long as it provides reasonable prior notice to the Discloser (unless legally prohibited) in order to enable the Discloser (a) to seek an appropriate protective order or other remedy; (b) to consult with the Recipient with respect to the Discloser’s taking steps to resist or narrow the scope of such request or legal process; or (c) to waive compliance, in whole or in part, with these Terms. If such protective order or other remedy is not obtained in a timely manner, or the Discloser waives compliance, in whole or in part, with these Terms, the Recipient or its representative shall disclose only that portion of Confidential Information which is legally required to be disclosed and shall require that all disclosed Confidential Information is given confidential treatment. Notwithstanding anything else in these Terms, except for publicly available documentation, the Trial Materials constitute Foursquare’s Confidential Information even if data included therein includes or makes use of facts that are publicly available (for example, POI Data for New York City would be confidential, even if individual venue commercial addresses are public), and shall remain Confidential Information for so long as the Trial Materials are retained by the Recipient. At the written request of the Discloser, the Recipient will promptly delete any applicable Confidential Information.
As between the parties, Foursquare owns all right, title and interest in the Trial Materials (including all Foursquare trademarks, service marks, logos and trade names) and any future developments and enhancements thereto. Except as explicitly granted above, nothing herein grants you any right, title or interest in Foursquare’s technologies or intellectual property, and Foursquare reserves all rights. Foursquare may use suggestions, feedback and other comments related to the Trial Materials without accounting, attribution or compensation to you.
THE TRIAL MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FOURSQUARE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THESE TERMS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS.
- LIMITATION OF LIABILITY AND DAMAGES
EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF YOUR VIOLATION OF THE LICENSES DESCRIBED HEREIN OR YOUR OBLIGATIONS UNDER SECTION 4: (A) NEITHER PARTY WILL 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) IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THESE TERMS EXCEED $50.00 (U.S.). THESE LIMITATIONS OF LIABILITY APPLY EVEN IF ANY REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You will indemnify, defend, and hold harmless Foursquare, its officers, directors, employees and representatives from and against any and all claims, demands, actions, costs, liabilities, losses, and damages of any kind (including attorneys’ fees) arising from or related to your use of the Trial Materials or your breach of these Terms.
These Terms begin on the date that the Trial Materials are made available by Foursquare for your access and will terminate thirty (30) days thereafter (the “Term”), unless extended by Foursquare in writing or terminated earlier by either party. Either party may terminate these Terms, for any or no reason, upon written notice to the other party. On termination, all licenses to the Trial Materials will terminate, you will promptly delete all Trial Materials (and upon Foursquare’s request, promptly certify such destruction in writing), and cease all access to services provided under these Terms. Sections of these Terms that by their nature would survive termination of these Terms shall survive, including Sections 4.4, 5-9 and 11.
- Sanctions; Export Compliance
You represent and warrant that you and your controlling parties are not on any of the sanctions or denied party lists maintained by the U.S or foreign agencies and authorities applicable to where you operate or perform any activity under these Terms. Further, you acknowledge that the Trial Materials may be subject to export control and sanctions laws and regulations of the U.S. or foreign agencies and authorities and agree not to export or reexport any Trial Materials in violation of applicable laws. Foursquare may suspend its performance under these Terms to the extent required by laws applicable to either party.
11.1. Neither party will make a press release or any other public statement about these Terms without the other party’s prior consent (email sufficing). These Terms do not impose any obligation to proceed with any transaction. Except for an Existing Contract, these Terms are the entire agreement of the parties, superseding any other agreements related to this subject matter. To the extent that a duly executed contract for the Trial Materials that incorporates these Terms by reference conflicts with these Terms, such contract will govern. These Terms cannot be modified except in a writing signed by both parties.
11.2. These Terms are governed by the State of New York, excluding conflicts of laws principles. The exclusive venue for any action arising under or related to these Terms or the Trial Materials will be (and the parties hereby consent to personal jurisdiction in) New York, New York. Actions arising under or related to these Terms or the Trial Materials 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.
11.3. You cannot assign or transfer your rights or obligations under these Terms, including the license granted above, without our prior written consent. Foursquare may transfer or assign our rights, obligations and licenses under these Terms freely. Foursquare’s failure to exercise or enforce any right or provision of these Terms will not constitute a waiver. Any waiver will be effective only if made explicitly, in writing and signed by Foursquare. If any provision of these Terms is unenforceable, the validity of the remaining provisions will not be affected. There are no third party beneficiaries to these Terms. Notices under these Terms must be sent in writing (with email sufficient so long as notices to Foursquare are sent with a copy to email@example.com). Where Foursquare’s advance written consent is required under these Terms, such consent may be provided via email from a foursquare.com email address.
11.4. Foursquare reserves the right to modify these Terms. Foursquare will notify you by making the revised version available on this page, and an updated revision date will indicate that changes have been made. You agree to review these Terms periodically to be aware of such changes. If any change is material, Foursquare will notify you by posting in the applicable service where these Terms are incorporated by reference or by email. If you do not accept the changes, you must stop using the Trial Materials. Your continued use of the Trial Materials after notification means that you consent to the updates. Foursquare also reserve the right to modify or discontinue any or all of the Trial Materials at any time, for any or no reason, with or without notice.