TERMS AND CONDITIONS – DATA SEGMENTS
Subject to these Terms and Conditions and any terms and conditions set forth on the Order Form (“Order Form”, and together with these Terms and Conditions, the “Agreement”) Data Provider shall provide MediaMath with the Data Segments. Any capitalized terms used but not defined herein shall have the definitions ascribed to them in the Order Form.
WHEREAS, MediaMath owns and operates a software platform known as the TerminalOne Marketing OS® (“MediaMath Platform”) that, among other things, permits MM Clients to purchase advertising inventory across different channels including websites, mobile sites and mobile device applications and target Ads served onto those advertising inventory;
WHEREAS, Data Provider collects non Personally Identifiable Information regarding Visitors, maintains a database containing profiles of such Visitors and creates Data Segments of such Visitors to be used in the targeting of Ads;
WHEREAS, MediaMath would like to make Data Provider’s Data Segments available on the MediaMath Platform for use by MM Clients; and
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows.
- Definitions. In addition to any other term defined in this Agreement, the following terms will have the following meanings:
- Ads means a creative unit that is served by MediaMath onto a website.
- Affiliate means, with respect to any Party, any entity that controls, is controlling, controlled by or under common control with, such Party.
- Applicable Law means all applicable federal, state and local laws and regulations, including any privacy and data security laws and industry self-regulatory guidelines.
- Custom Data Segment means a Data Segment that is specifically requested by an MM Client and provided to MediaMath solely for that particular MM Client’s use.
- Data Segment means a grouping of multiple MMUIDs based on shared characteristics, behavioral information, interests or attributions, and as used herein, refer collectively to Custom Data Segments and Standard Data Segments.
- Intellectual Property Rights means, collectively, any patents, trade secrets, copyrights, trademarks, and all other intellectual property rights and proprietary rights, whether under the laws of the United States or other jurisdictions, in each case now existing or hereafter developed.
- MMUID means the anonymous identifier associated with an individual Visitor.
- MM Client means an advertiser or agency that is a customer of MediaMath and uses the MediaMath Platform.
- NAI Code means the Code of Conduct promulgated by the Network Advertising Initiative, located at the following website, or any successor website: http://www.networkadvertising.org/sites/default/files/NAI_Code15encr.pdf
- Personally Identifiable Information means information that may be used to identify, contact, or locate a natural person, including name, email address, government identification number or telephone number.
- Sensitive Information means any information that includes the following information that may be used to identify an individual, such as:(i) his or her financial account numbers or insurance plan numbers, (ii) precise information about health or medical conditions, (iii) any government-issued identifiers and (iv) includes any Personally Identifiable Information about a minor under the age of 13.
- Standard Data Segments means the Data Segments that are set forth in Schedule A hereto or that after the date hereof are provided to MediaMath.
- Visitor means a visitor to a website.
- Description of Services; License.
- Services and Uses.
- Data Provider maintains a database with pre-existing Standard Data Segments and other consumer data that can be used to group Visitors into Custom Data Segments. The Data Segments are (i) cookie-based and anonymous (i.e., there is no Personally Identifiable Information associated therewith) and (ii) represented as a number that is not human readable but can be utilized to target Ads on an advertising campaign and for related purposes, such as creating analytical reports.
- MediaMath may incorporate the Data Segments into the MediaMath Platform and make the Data Segments available through the MediaMath Platform for the limited purposes of online campaign targeting and related analytics as selected by the MM Client.
- In order to make the Data Segments targetable within the MediaMath Platform, during the Term, MediaMath will provide certain real-time data transfers (each, a “Pixel Sync”) to Data Provider to enable Data Provider to (x) associate and map an MMUID with an individual Visitor in a Data Segment and (y) validate audience overlap with Data Provider’s existing Data Segments.
- License. Data Provider hereby grants MediaMath a limited, non-exclusive, non-transferable (except as permitted in accordance with Section 11(b)) license to access, view, display, distribute and use the Standard Data Segments and Custom Data Segments (if any) for use in targeting Ads. The access and use of Data Segments by MM Clients as contemplated herein is permitted by the foregoing license grant and shall not be deemed to constitute a sublicense or transfer of such Data Segments by MediaMath.
- Services and Uses.
- Fees and Reporting.
- MediaMath shall pay any sales, use or other taxes payable on the Fees; provided that such taxes are included in the invoice to MediaMath, but will not be responsible for any federal or state income tax imposed on the Data Provider.
- MediaMath shall not be obligated to pay any invoices delivered to MediaMath later than sixty (60) days after the delivery of the MM Report.
- Obligations and Covenants.
- Data Provider agrees that:
- Each Standard Data Segment provided by Data Provider shall include the following information: (w) taxonomy, (x) description of the Data Segment, (y) Country of Visitors within the Data Segment and (z) with respect to any Custom Data Segments, the Custom Fee to be invoiced by MediaMath to the MM Client. Any Data Segment that do not have such information shall be rejected by MediaMath, will not be made available on the MediaMath Platform and may not be charged to MediaMath.
- Data Provider may not provide MediaMath with any Data Segments comprised of consumers that are grouped on the basis of characteristics deemed sensitive under the NAI Code, including but not limited to (w) sensitive health conditions, (x) hyperlocal targeting, (y) websites, mobile sites or applications that might be directed towards children under the age of thirteen (13) or (z) sexual orientation without MediaMath’s prior written consent (email sufficient).
- In addition to the characteristics set forth in Section 4(a)(ii) above, if any Data Segments consisting of consumers in the European Union are grouped on the basis of characteristics deemed to be a special category of personal data under either Directive 95/46/EC of 24 October 1995 or the EU General Data Protection Regulation, including but not limited to: (w) race or ethnic origin, (x) political opinions, (y) health or sex life, or (z) trade union membership.
- Data Provider will not directly or indirectly sell, lease, license, share, disclose or otherwise make available the data provided by MediaMath in connection with the Pixel Sync to any third party, and may not use such data for purposes other than as set forth herein, including to build audience profiles or lookalike profiles, other than as specifically directed by MM Client or MediaMath.
- Data Provider agrees that:
- Representations and Warranties.
- Mutual Representations. Each party represents and warrants that: (i) it has the full corporate and contractual (if required) rights, power and authority to enter into this Agreement and perform the acts required hereunder; (ii) the execution of the Agreement and the performance of its obligations hereunder do not and shall not violate any other agreements to which it is a party; (iii) this Agreement constitutes a valid, legal and binding obligation of such Party when executed and delivered and (iv) any and all activities it undertakes in connection with this Agreement will be performed in compliance with all Applicable Laws.
- Data Provider Representations. Data Provider represents and warrants that: (i) the Data Segments shall be free of any virus, trap door, Trojan Horse, worm, or other device or malicious code; (ii) the Data Segments have been and shall be collected and compiled in compliance with all Applicable Laws, including applicable privacy laws and regulations, including any self-regulatory industry standards and its privacy policies; (iii) it shall not provide or permit any third party to provide any Personally Identifiable Information or any Sensitive Information to MediaMath and shall not merge or otherwise associate Personally Identifiable Information with information collected through the MediaMath Platform unless such merger or association is conducted in accordance with Applicable Law; (iv) the Data Segments shall not contain any Visitors that have opted-out of interest based advertising; (v) it has obtained all consents necessary to provide the Data Segments and (vi) the Data Segments will be provided consistent with standard industry practices and in a professional and workmanlike manner.
- Confidential Information.
- During the Term, each Party may disclose to the other Party certain information (either oral, written or digital) including but not limited to, research, product plans, products, services, pricing, customer lists or opportunities, processes, designs, drawings, technical data, know-how, financial data, marketing material or hardware configuration (collectively, “Confidential Information”). The recipient of the information (“Recipient”) shall hold the disclosing Party’s (“Discloser”) Confidential Information in confidence and shall not disclose Discloser’s Confidential Information to any third party and shall use it solely for the purpose of performing its obligations under this Agreement. Upon termination of this Agreement, Recipient shall either return all Confidential Information in its possession or destroy such Confidential Information and certify its destruction to the Discloser.
- “Confidential Information” shall not include information which (i) is in the public domain at the time of disclosure or enters the public domain following disclosure through no fault of the Recipient; (ii) the Recipient can demonstrate as already in its possession prior to disclosure hereunder or is subsequently disclosed to the Recipient in each case with no obligation of confidentiality by a third Party having the right to disclose it; or (iii) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information. Recipient may disclose the Discloser’s Confidential Information upon the order of any competent court or government agency; provided that prior to disclosure the Recipient shall inform the Discloser of such order and if possible, the opportunity to oppose such order. Each Party agrees that its obligations in this Section 6 are necessary and reasonable in order to protect the Discloser and its business, and each Party agrees that the remedy of damages would be inadequate to compensate the Discloser for any breach by the Recipient of its obligations set out under this Section Accordingly, each Party agrees that, in addition to any other remedies that may be available, the Discloser shall be entitled to seek injunctive relief against the threatened breach of this Section 6 or the continuation of any such breach by the Recipient, without the necessity of proving actual damages.
- Data and Privacy.
- Term and Termination.
- This Agreement shall commence as of the Effective Date and shall continue until the Order Form issued pursuant to it have expired or been terminated in accordance with Section 8 hereof.
- Either Party may terminate this Agreement immediately if the other Party materially defaults on its obligations hereunder and fails to cure (or commence a cure) within ten (10) business days after having been given notice of such default. Notwithstanding the foregoing, MediaMath may terminate this Agreement immediately without notice if Data Provider violates the consent requirement set forth in Section 4(a) on more than two (2) occasions.
- In the event of termination, MediaMath may continue to provide any Data Segments currently in the MediaMath Platform for a period of thirty (30) days from the date of termination.
- Indemnification and Limitation of Liability.
- Indemnification. Data Provider shall indemnify, defend and hold harmless MediaMath, its Affiliates and their respective officers, directors, employees and agents from and against all liabilities, claims, awards, judgments, settlements, damages and costs (including reasonable attorneys’ fees) arising out of any third party claim, action or demand based on (i) Data Provider’s breach of its representations and warranties set forth in Section 5(b) and (ii) an allegation that the Data Segments infringe upon a third party’s Intellectual Property Rights.
- Limitation of Liability. Except with respect to a party’s indemnification obligations (as set forth in Section 9(a) above), liabilities relating to a breach of its representation and warranty under Sections 5(a)(iv), or 5(b)(ii), 5(b)(iii) or 5(b)(v), Section 7, or damages resulting from a party’s gross negligence or intentional misconduct:
- NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE OR PROFITS BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
- EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE FEES PAID AND PAYABLE UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE LIABILITY FIRST AROSE.
- Warranty Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DATA SEGMENTS PROVIDED PURSUANT TO THIS AGREEMENT BY DATA PARTNER ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EACH PARTY DOES NOT MAKE, AND EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES OF ANY KIND.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of New York without giving any effect to any conflict of law principles. For any disputes arising out of this Agreement, the parties consent to personal and exclusive jurisdiction of and venue in the state or federal courts within the state and county of New York.
- Assignment. Neither party may transfer or assign this Agreement or its obligations hereunder, in whole or in part, without the prior written consent of the other Party (which consent shall not be unreasonably withheld, delayed or conditioned), except that a Party may assign all of its rights and obligations hereunder to a successor (whether by sale, acquisition, merger, operation of law or otherwise) if the successor agrees in writing to fulfill all of the assigning Party’s obligations hereunder. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any assignments in breach of this Section shall be void ab initio.
- Notices. All notices hereunder shall be in writing and delivered electronically or by certified or registered mail to the addresses set forth above and shall be deemed delivered when received.
- Severability. If any of the provisions of this Agreement is or becomes illegal, unenforceable or invalid, the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way.
- Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control, including to acts of nature, war, strikes, acts of terrorism, national disasters or unavailability of necessary utilities.
- Independent Contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, employment or agency relationship between the Parties.
- Publicity. Neither Party will issue any press releases regarding this Agreement without the other Party’s prior written consent; provided, however, that MediaMath may publicize the availability of the Data Segments and may use the applicable Data Provider mark for such purposes.
- Non-exclusivity. Subject to the confidentiality obligations set forth in Section 6, each Party acknowledges that nothing in this Agreement restricts the other Party from developing or offering similar products or services to any third party.