Client Data Sharing Agreement
This CLIENT DATA SHARING AGREEMENT ("Agreement") is made effective as of the date of the last signature below (the “Effective Date”) and between the entities listed below (each a “Party” and together, the "Parties"). The Parties, intending to be legally bound, agree as follows:
“a4,” “we,” “us” Full Legal Name: a4media, LLC
“Company,” “you”
1. Company Data. From time to time, you may provide to us a list of your (or your clients') U.S. customers, prospects or other U.S. individuals, households or devices ("Company Data") for us to perform Processing Services (as defined in Section 2) for you. The Company Data shall be shared with us only in a format reasonably designated by us, which list may be based on personally identifiable information, as defined under applicable Laws ("PII"), or on anonymous identifiers, such as IP address or cookie ID, and may include additional information regarding such individuals or households. You warrant that the Company Data shall in no event include personal data (as defined under applicable Laws) of EU, Swiss or EEA residents. We reserve the right to accept or reject any proposed Company Data in our sole discretion, however no acceptance by us shall impact your warranties hereunder regarding the Company Data.
You represent and warrant that you are in lawful possession of all the information that makes up the Company Data and that providing any and all information that together constitutes the Company Data pursuant to this Agreement does not contravene any other legally enforceable agreement or any data privacy representations made by you. You represent and warrant that: (i) you own or otherwise have all rights necessary to provide the Company Data and the information that makes up the Company Data to us; (ii) you have complied and will comply with all applicable laws, rules and regulations, including those relating to information privacy and security ("Laws"); (iii) the Company Data was collected and/or obtained in compliance with all applicable Laws; (iv) you have obtained all permissions, consents, releases or other rights necessary to provide the Company Data to us for the purposes described in this Agreement; (v) the Company Data, the licenses granted herein and the use of the Company Data by us, our affiliates and partners will does not and will not infringe, misappropriate, or violate any third party rights; (vi) the Company Data will not contain or execute any device, software routine, virus, Trojan horse, or other similar malicious code or feature that could delay, disrupt, or interfere with the use or proper functioning of any software, systems, or enable unauthorized third parties to access our systems; and (vii) in no event will the Company Data include any Sensitive Data. “Sensitive Data” is any PII which if lost, compromised, or disclosed without authorization, could result in substantial harm or unfairness to an individual (e.g., PII of anyone under the age of eighteen, government-issued identification numbers, full birth date, information such as sexual orientation, transgender identity or religion or health information or conditions). If you propose to provide Company Data that includes any protected health information (as defined under the Health Insurance Portability and Accountability Act (HIPAA)), then you and we must execute a separate addendum to this Agreement prior to such Company Data being delivered to us. You agree to indemnify, defend and hold us, our Affiliates and Representatives harmless from and against any breach or alleged breach of this Section 1.
2. Our Services. We will provide data processing services (“Processing Services”), including without limitation data matching, data modeling, audience creation, and pre- and/or post-campaign data analytics services, as mutually agreed in writing (email permitted) from time to time only for a mutually agreed upon Business Purpose (as defined by the CCPA). If we provide requested pre-campaign data processing services, you agree to pay us the agreed fee, if any, regardless of whether the related advertising campaign actually runs. We may use third party agents to perform services hereunder, however we shall remain responsible for any acts or omissions of such agents in their performance of such services. Any additional products or services requested by you shall be subject to a separate written agreement.
3. Authorization to Contract for Clients. If you are contracting for any Processing Services hereunder on behalf of a client, then (i) you warrant that you are fully authorized to contract for such services and to provide such client's data as contemplated herein and (ii) you shall be directly liable to us for such contracted services and any related obligations, regardless of whether you are paid or otherwise compensated therefor by your client.
4. Secure Delivery. You agree that all Company Data will be delivered solely via our secure data onboarding facility, or other agreed delivery secure mechanism agreed by us in advance in writing (email permitted), and in no event will the Company Data be emailed or otherwise delivered in an unsecure manner.
5. Privacy Related Restrictions.
a. In no event shall you or we attempt to (i) "reverse engineer." or re-identify any persons or households from any de-identified data developed or provided hereunder or (ii) determine any Sensitive Data regarding any persons or households included in the data being processed hereunder. In addition, in no event shall you attempt to “reverse engineer” or otherwise attempt to determine from any information received hereunder any proprietary information about us, our agent(s) or our or their respective platforms or algorithms.
b. All capitalized words used in this Section 5 (b) shall have the same meaning as ascribed to them in the California Consumer Privacy Act of 2018, Cal. Civ. Code Section 1798.100-1798.199 (as it may be amended from time to time) (the “CCPA”). To the extent that we provide Processing related services to you as part of this Agreement, each party acknowledges and agrees that we are designated a Service Provider under the CCPA. With respect to any Consumer Personal Information you provide to us for a Business Purpose, we agree to: (i) not Sell, retain, use, or disclose such Consumer Personal Information for any purpose other than the Business Purpose specified herein (or in any service order executed hereunder) or otherwise permitted by the CCPA; (ii) comply with the CCPA in connection with the Processing of such Consumer Personal Information; and (iii) promptly cooperate with you in responding to and fulfilling any access, opt-out or deletion requests received from Consumers to exercise rights under the CCPA.
6. Confidentiality. You and we agree that any data processing results hereunder shall be deemed "Confidential Information" of each of us, and the Company Data shall be deemed your "Confidential Information." You and we agree not to disclose information regarding any data processing results, and we agree not to disclose information about the Company Data, except in each case to our respective Representatives (and to your client and its Representatives, as applicable) as needed in connection with any data processing project hereunder. For the sake of clarity, you and we may use data processing results for our internal purposes, but you acknowledge and agree that we will in no event deliver to you any targeting audience created as a result of any services hereunder.
7. Destruction of Information. Unless you expressly agree otherwise, we shall destroy the Company Data within thirty (30) following the completion of our processing services, and we shall destroy any modeled or matched targeting audience based on Company Data within ninety (90) days following the end of the last campaign run based on such data. Notwithstanding the foregoing, each of us and our agents may retain such data as part of its standard systems back-up and/or archiving processes and as necessary to comply with Laws or other regulatory obligations; provided that all such retained data shall be destroyed as soon as practicable and shall remain subject to the confidentiality restrictions hereunder for as long as retained.
8. Compliance with Laws. You and we agree to comply with all applicable Laws in connection with any performance hereunder.
9. Warranty Disclaimers; Limitations of Liability.
(a) Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT (I) ANY DATA PROVIDED DIRECTLY OR INDIRECTLY BY YOU OR US HEREUNDER, AND ANY PRODUCTS OR SERVICES PROVIDED BY US OR OUR AGENTS HEREUNDER, ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER, AND (II) YOU AND WE EXPRESSLY DISCLAIM, ON BEHALF OF OURSELVES AND OUR AGENTS, ALL IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
(b) Limitations of Liability. In no event shall you or we be responsible for any consequential, special, punitive or other indirect damages, including, without limitation, lost revenue or profits, whether based in contract, tort, or any other theory, regardless of foreseeability and even if you or we have been advised of the possibility of such damages, and your and our liability in connection with any product or service provided hereunder shall not exceed the total amount of fees paid by you in connection with such product or service. The above referenced limitations of liability shall not apply to (i) your or our indemnification obligations, gross negligence or willful misconduct or (ii) your obligation to pay fees due for any service we provide.
10. Indemnification. Each Party agrees to indemnify, defend, and hold harmless the other Party, its Affiliates and its and their respective officers, directors, members, stockholders, employees, agents and representatives ("Representatives") from and against any third party claims, demands, suits, and proceedings (together, "Claims"), and any and all losses, damages, liabilities, fines, penalties, costs and expenses (including reasonable attorney’s fees) related thereto, to the extent related to or arising out of any breach or alleged breach of this Agreement by the indemnifying Party. A Party's "Affiliate" shall mean any entity that controls, is controlled by, or is under common control with such Party. The indemnified Party hereunder shall promptly notify the indemnifying Party of any indemnified Claim and shall tender to the indemnifying Party control of the defense and/or settlement thereof, including without limitation, selection of counsel and direction of legal strategy; provided that any settlement shall be subject to the indemnified Party's approval, which shall not be unreasonably withheld or delayed. The indemnified Party shall cooperate in all reasonable respects with the indemnifying Party in the defense and/or settlement of the Claim and shall have the right, at its own expense, to participate in, but not control, any such defense or settlement.
11. Term; Termination. Upon execution by both Parties, this Agreement shall become effective as of the Effective Date and shall continue until terminated by either Party upon at least thirty (30) days prior written notice to the other Party; provided that no such termination will affect the Parties' rights or obligations arising prior to such termination, and provided that you and we will have the right to cease any services hereunder upon written notice to the other if either of us reasonably believes performing such services may subject us to liability or other adverse consequences..
12. Assignment. Neither Party may assign this Agreement in whole or in part to any third party without the prior written consent of the other Party, provided that either Party may assign this Agreement without such consent to any Affiliate or successor to the business to which this Agreement relates, so long as such Affiliate or successor assumes or is otherwise fully bound by all of the obligations of the assigning Party hereunder.
13. Governing Law; Jurisdiction. This Agreement shall be construed in accordance with and governed by the substantive and procedural laws of the State of New York, without reference to any conflicts of laws principles. The Parties irrevocably consent to the venue and jurisdiction of the state and federal courts located in New York County, New York for the purposes of interpreting and enforcing the provisions hereof and agree that such courts will have exclusive jurisdiction of any such proceeding.
14. Miscellaneous. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements or understandings, whether written or oral, with respect thereto. This Agreement may not be modified in any respect, and no provision hereof may be waived, except by a writing signed by both Parties that expressly states the intention to so alter this Agreement. No waiver shall constitute a continuing waiver unless the intention to grant a continuing waiver is expressly stated in writing. This Agreement shall inure to the benefit of, and be binding on and enforceable by, the Parties hereto and their respective successors and permitted assigns. The rights and obligations of the Parties shall survive any termination hereof as reasonably necessary to give effect to the provisions hereof. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be ineffective to the extent of such unenforceability (but shall be enforced to the maximum extent permissible), and the remaining provisions shall continue in full force and effect. This Agreement may be executed in counterparts, each of which shall be deemed an original and both of which shall constitute one and the same document.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their authorized representatives effective as of the Effective Date.