I. General Product Terms & Conditions. The terms set forth in this Section I shall be applicable to any Products sublicensed by Client to its End User customers and shall be included in Client's End User Agreement with each End User:
1. Title. End User acknowledges that the Data shall at all times remain the intellectual property of Client's licensors and third party data owners (collectively the "Data Owner") who provided the Data to Client, and that End User has no proprietary rights whatsoever in the Data.
2. End User Warranty. End User warrants that (a) it is a duly formed entity (i.e., corporation or limited liability Client) in good standing under the laws of the state of its incorporation or organization; (b) it is qualified to transact business in all states where the ownership of its properties or nature of its operations requires such qualification; (c) it has full power and authority to enter into and perform the Agreement; and (d) the execution and delivery of the Agreement have been duly authorized. End User further warrants that: (i) it is not a "foreign adversary" as defined under the Protecting Americans' Data from Foreign Adversaries Act ("PADFA"), or a "country of concern" or "covered person" as defined under the U.S. Department of Justice's Bulk Sensitive Data Rule, codified at 28 C.F.R. Part 202 (the "DOJ Bulk Data Rule") (a foreign adversary, a country of concern, or a covered person is hereinafter referred to collectively as a "Prohibited Entity"); (ii) it is not owned or controlled, directly or indirectly, by a Prohibited Entity; and (iii) it will not disclose or make available any Products to any employee or other personnel who is a foreign national of, or is located in, a foreign adversary country or country of concern, or any third party (including an End User Service Provider) that is a Prohibited Entity or is owned or controlled, directly or indirectly by a Prohibited Entity; (iv) it will notify Client in writing if it or any such third party becomes such an entity; and (v) it will cease providing Products to any such employee, personnel, or third party that becomes such an entity if advised to do so by Client.
3. Term/Termination/Events Upon Termination. Client grants to End User a limited, non-transferable, non-exclusive license ("License") to possess and use the Data Products ordered hereunder, subject to the terms of this Agreement for a period of one year from the Client's acceptance of the applicable order form under which the Data Products are ordered from Client. Upon expiration of the one-year License period described above, or upon any termination of this Agreement for any reason, End User shall, at Client's option, destroy or return to Client the Data and any copies thereof and within five (5) business days of expiration or termination and certify in a writing to be delivered to Client within five (5) business days following such destruction or return that End User has fully complied with the requirements of this Section. Notwithstanding the foregoing, except in the case of Client's termination of this Agreement for cause, or suspension of data delivery due to law, rule, or regulation, End User shall not be required to destroy mailing addresses or telephone numbers that Client appended to Client-provided records, provided that any continued use of such information will continue to be governed by the terms of this Agreement.
4. General Terms and Conditions: End User may use the Data provided pursuant to this Agreement, subject to the following:
4.1 Permitted Uses.
a) The Data may be used for End User's direct (i.e., offline) and/or online marketing programs to consumers in the United States. In all consumer marketing uses, the Data is to be used to determine a consumer's interest in or likelihood to respond to an End User solicitation and not for exclusionary or discriminatory purposes.
b) Subject to Section I(2) above, End User may provide End User's file as enhanced with the Products to End User's third party service bureau processor, mail house or marketing consultant (each an "End User Service Provider") who are performing services for End User in connection with End User's use of the Products; provided that prior to delivery of the Products to the End User Service Provider, End User shall have obtained the End User Service Provider's written agreement in the form of a Third Party Processor Agreement to: (a) hold the Products in strict confidence; (b) use the Products only in connection with such services and in accordance with this Agreement, including the restrictions in Section 4.2(e) below; (c) not translate the Products into another format or language, or decompile or reverse engineer the Products, and (d) not sell, rent or otherwise provide the Products to any third party. For the avoidance of doubt, Client or Data Owner shall have the right to reject the use of any particular End User Service Provider requested in the event that such End User Service Provider does not maintain sufficient security systems to protect the Data or if it would violate applicable law to provide Products to such End User Service Provider. Notwithstanding anything to the contrary in the foregoing, authorization to use a cloud storage environment shall be subject to compliance with the following: i) Client will not allow any transfer of ownership rights in or to the Data in Client's agreements with its cloud storage service provider; ii) Client shall remain responsible for the control and security of the data in compliance with the security requirements set forth in the Agreement such that the Data shall be utilized only as authorized herein; and iii) Client shall ensure that the selected cloud storage service provider maintains an information security program that has administrative, technical, and physical safeguards sufficient to protect the Data housed within the cloud environment in compliance with the Agreement. Client agrees that Acxiom shall have the right to audit Client's compliance with the foregoing requirements at any time upon ten (10) days prior written notice.
4.2 Requirements and restrictions.
a) When the Data is used in online marketing programs, the Data may be used as selection criteria for purposes of identifying the advertising target for marketing solicitations via online advertising campaigns; provided, however, all marketing communications shall: (i) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation; (ii) comply with all applicable laws, governmental rules and regulations; and (iii) comply with applicable privacy policies and, where applicable, the principles and/or best practices set forth within the following websites: Digital Advertising Alliance (http://www.aboutads.info/), Mobile Marketing Association, in particular its Best Practices Guide (http://www.mmaglobal.com or successor site), Federal Communication Commission (http://fcc.gov or successor site), and Interactive Advertising Bureau, in particular its Best Practices and its Self-Regulatory Guidelines and Behavioral Advertising Principles (http://www.iab.net or successor site). End User may use the Data to create, segment, or select a marketing-campaign audience ("Online Audience") for an Online Targeting campaign. The Online Audience may be distributed directly to a publisher or distributed to a publisher through use of an onboarding service provider. Regardless of the distribution channel, only the selected Online Audience may be distributed to the publishers, and the Online Audience distributed by or on behalf of End User shall not contain: (i) any demographic elements sourced from the Data, other than name, address, telephone, or email address; or (ii) segment codes derived from the Data.
b) Any email deployed by End User sourced from the Data will: (i) contain an opt-out provision, (ii) identify Client and provide a valid physical address, and (iii) clearly express the intent of the email communication. Reverse Phone Append, Reverse Email Append, and Email Append shall be limited to consumers with whom End User can reasonably demonstrate an existing business relationship ("Existing Customers"). Existing Customers do not include consumers who merely contacted End User. Any Existing Customer record submitted for email append must contain a full name and street address.
c) The Products must reside and be used in an End User facility within the United States.
d) End User may not sell, lease, rent or otherwise provide the Product to any third party, except as End User Service Provider as provided above.
e) End User may not use the Data: (i) as a factor in establishing an individual's creditworthiness or eligibility for credit, insurance or employment or credit repair services; (ii) to advertise, sell, or exchange any illegal or illicit products or services, including, without limitation, pornography, illegal drugs, or illegal weapons; (iii) to train End User's or any third party's large language models (LLMs) or artificial intelligence (AI) tools; or; (iv) in an individual look-up reference application.
f) All marketing communications used in connection with any list created by or for End User derived from the Data shall (i) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation, or the source of the recipient's name and address; (ii) comply with all applicable federal and state laws, rules and regulations; (iii) comply with all applicable privacy policies as well as applicable self-regulatory guidelines, including the ANA Guidelines for Ethical Business Practice, published by the Data Marketing & Analytics (DMA) Division of the Association of National Advertisers (ANA) or any equivalent successor organization; and (iv) be in good taste in accordance with generally recognized standards of high integrity.
g) End User shall furnish Client, if requested, two (2) copies of each mail piece, creative copy and/or telemarketing script using information derived from the Data.
h) The Products will not be used: (i) for the benefit of a third party; (ii) in the development of any products or services to be provided to a third party; (iii) in the conduct of any marketing campaigns promoting a third party's products or services; or (iv) in connection with any list enhancement or data appending projects performed for a third party.
i) Acxiom is obligated to comply with certain restrictions and requirements placed upon the use of the Data by the Data Owners. End User shall strictly comply with all restrictions and requirements now or hereafter imposed upon Acxiom by any Data Owner and made known to Client in writing.
j) End Use shall ensure secure inbound and outbound transmission of the Data via secure methods including both SFTP and PGP encryption.
k) End User shall represent and warrant that, it has implemented and maintains an information security program that contains administrative, technical, and physical safeguards that are appropriate to its size and complexity, the nature and scope of its activities, and the sensitivity of any customer information at issue, sufficient to protect the Products. End User shall provide for logical and physical security of the Data with the same degree of care used to protect its own Confidential Information, but not less than reasonable security procedures and practices appropriate to the nature of the Data. Furthermore, End User will prevent loss, compromise, and misuse of the Data while in End User's care, custody, or control. End User shall not grant access to the Data to individuals incarcerated in correctional institutions.
l) Consumer Elections/Inquiries. In any use of the Products, End User must honor all consumer elections not to receive marketing solicitations from End User. End User is responsible for responding to any communication initiated by a consumer arising out of End User's use of the Products. Upon receipt of an express request from a consumer for the source of the consumer's personal information used in a marketing solicitation, End User may reference Acxiom as a source of such information, provided End User has verified Acxiom as the source. End User must promptly notify Acxiom of such request and provide Acxiom with a transcript or written description of the communication with the consumer. It is End User's sole responsibility to ensure that the most current legally required suppression processing has been applied prior to marketing use of any Products provided to End User.
m) Audit/Non-Compliance. End User agrees that at all times it shall maintain current, accurate and complete books and records relating to its usage of the Data in compliance with the terms of this Agreement. End User agrees that Client or Acxiom, or any designee of Client or Acxiom, shall have the right at any time to examine, inspect, audit, review and copy or make extracts from all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to End User at least five (5) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be strictly limited to those books and records which specifically relate to information pertinent to the use of the Data. In the event an audit reveals that End User is not in compliance with any of the terms and conditions of this Agreement, End User shall be responsible for the costs of the audit, as well as any and all damages resulting from such non-compliance including, without limitation, any special, incidental, indirect, or consequential damages whatsoever (including punitive damages and damages for loss of reputation or goodwill).
n) Client reserves the right to review and pre-approve the End User's intended use of the Data prior to Client's acceptance of an order.
5. Indemnification. End User shall defend, indemnify, and hold harmless Client and the Data Owner from and against any and all claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys' fees, arising out of or resulting from End User's misuse or unauthorized use of the Data. Client shall provide End User prompt written notice of any claim of which it has knowledge, and shall provide End User with the assistance, information and authority necessary to perform End User's obligations under this Section.
6. Warranty Disclaimer/Limitation of Liability. The Data provided to End User will be as complete, accurate, and current as it can be in view of industry standard methods of compilation of such data and the nature and accuracy of Acxiom's sources for such data. Accordingly, the Data is provided on an "as is," "as available" basis. Any use or reliance upon the Data by End User shall be at its own risk. EXCEPT AS SET FORTH IN THIS SECTION, NEITHER CLIENT NOR THE DATA OWNER MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, HEREUNDER WITH RESPECT TO THE SERVICES, DATA, OR THE MEDIA ON WHICH THE DATA IS PROVIDED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT'S AND THE DATA OWNER'S AGGREGATE LIABILITY TO END USER, WHETHER FOR NEGLIGENCE, BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, SHALL BE LIMITED TO THE PRICE PAID FOR THE DATA OR SERVICES TO WHICH THE INCIDENT RELATES. IN NO EVENT SHALL CLIENT OR DATA OWNER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND HOWEVER ARISING, INCLUDING BUT NOT LIMITED TO LOST INCOME OR LOST REVENUE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY.
II. Product-Specific Terms & Conditions. In addition to the general terms and conditions set forth in Section I above, the following terms and conditions set forth in this Section II are specific to the identified Product and shall only be required for inclusion in an End User Agreement when such End User client requests the applicable Product from Client:
1. Consumer List Data. Consumer List Data may be licensed for either one-time, two-time or multiple use within a one-year term as specified by Client in an applicable Schedule or Order Form. The Consumer List Data is seeded to detect any unauthorized use or duplication thereof, and End User agrees not to remove seeds from its mailing lists. End User agrees to pay for the full multiple use charge for End User's violation of the permitted uses specified herein or duplication of the Consumer List Data, which shall be in addition to any other remedies that Client and its Data Owners have available under this Agreement. The Consumer List Data shall be examined upon the delivery thereof and End User shall notify Acxiom in writing within thirty (30) days of delivery of any questions or problems. No information shall be accepted after thirty (30) days.
2. USPS National Change of Address. In the event that End User receives National Change of Address ("NCOA") and Delivery Sequence File ("DSF") [DSF includes Second Generation Delivery Sequence File, i.e. DSF2] as part of the Data licensed pursuant to this Agreement, End User, End User agrees that the sole permitted use of these licensed services is to process address lists in the preparation of mail that will be submitted to the USPS for acceptance and delivery. In connection therewith, End User warrants that it is an entity located or operating within the United States and that it will only use mailing lists processed through the licensed Products for mailing to addresses located within the United States. Broker and End User acknowledges and agrees that: (a) Broker and each End User must complete and execute a USPS Processing Acknowledgment Form prior to use of NCOALink and DSF2, and (b) a minimum of 100 records per use is required by the USPS.
3. Restricted Telephone Number. In addition to the permitted uses and restrictions set forth herein, use by End User of the Restricted Telephone Number Data requires a valid exemption from requirement(s) to register pursuant to regulations of the Federal Trade Commission ("FTC"), Federal Communications Commission ("FCC") and other applicable governing and/or regulating entities along with End User's signature on a separate waiver ("Waiver") form which shall be provided to End User by Client. End User's execution of the Waiver is required prior to completion of processing.
4. InfoBase Economic Assessments Data. The foregoing permitted uses and restrictions, the terms and conditions set forth below shall apply to End User's license of the InfoBase Economic Assessments Data Products (hereinafter the "Data"). Without limitation of the foregoing, End User shall not use the Data for credit granting, credit monitoring, account review, accounts receivable management, insurance underwriting, employment, or any other "permissible purpose" as defined by the Fair Credit Reporting Act (15 U.S.C. Sec. 1681 et seq ["FCRA"]), Federal Trade Commission interpretations of the FCRA, and similar state statutes, for permitted uses set forth in the Gramm-Leach-Bliley Act, (15 U.S.C. '6805, et seq), or applicable regulations or in a manner contrary to the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.).
a) End User may not use the InfoBase Economic Assessments Data Product for online marketing campaigns. Use of the InfoBase Economic Assessments Data Products is limited to offline (i.e., direct) marketing programs only.
b) End User will not in any direct mail solicitation, telephone solicitation, or survey refer to any selection criteria or any presumed knowledge about the recipient.
c) End User will use the Data in any manner to discontinue, cancel, or deprive any individual or group of individuals of an already existing right or benefit.
d) Mail Piece/Telemarketing Script Approval. End User agrees to only use the Data in compliance with applicable law, regulation, or industry guidelines and shall comply with the published policies, including but not limited to the Association of National Advertisers ("ANA") and the Digital Advertising Alliance ("DAA") Self-Regulatory Principles for Online Behavioral Advertising, as applicable to the Products and Services.
5. E-Mail Products - Email Prospect List. When End User requests the Email Prospect List Product, the following terms shall apply:
a) Source File. On a periodic basis and according to the scheduling requirements established herein, Client will provide Acxiom with a file consisting of: (i) Client's Existing Customer records; or (ii) as applicable to the Email Prospect List Product ordered hereunder, Acxiom or Acxiom Service Provider (as defined herein) will create or receive a prospect file in response to Client's prospect selection criteria. All files submitted for processing pursuant to this Agreement will be referred to herein as "Source Files". All Source Files will: (a) contain U.S. consumer records only; (b) be in the layout specified by Acxiom and communicated to Client; and (c) be delivered to Acxiom via SFTP using the SFTP address, user name, password, and file naming convention provided to Client by Acxiom.
b) End User Suppression File. Where End User has ordered a Product that includes deployment or End User has ordered deployment services, End User will provide Client with a file of email addresses for consumers who have communicated to End User their election to opt-out of receiving any further email communications ("Pander File" or "Do Not Email Suppression File"). The Pander File must be delivered prior to the first campaign deployment and updates shall be provided by End User prior to each subsequent campaign deployment. End User shall be solely responsible for maintaining and providing Client with updates to the Pander File.
c) Campaign Submissions. All files for a campaign deployment will be submitted in accordance with the schedule mutually agreed to by the parties. In the absence of such a schedule or for any ad hoc deployment requests, End User must provide Client with 15 business days' notice prior to delivery of the applicable file for such deployment.
d) Campaign Processing. The following will be conducted for each campaign deployment:
i. Where End User has ordered a Product that includes deployment or End User has ordered deployment services, Client will match the Source File to the Pander File provided by End User using a 100% exact string match logic. All matching Source File records will be suppressed from the campaign deployment and will not be submitted for any subsequent deployment processing.
ii. The remaining Source File records will be submitted to the Acxiom Service Provider for conducting of the email campaign deployment. The content of the campaign email (including the from field, header field, subject field, opt-out language and message/artwork) shall be provided by End User and shall comply with the following: (i) contain an opt-out provision; (ii) contain a valid, physical Address; (iii) identify End User; (iv) be in good taste in accordance with generally recognized standards of high integrity; (v) comply with the applicable privacy policy of End User or its affiliate; (vi) comply with applicable law with respect to communications of such nature; (vii) clearly express the intent of the e-mail communication; (viii) shall not be libelous, slanderous, fraudulent, false advertising or misrepresentative; and (ix) shall not infringe any copyright, trademark or other third-party right.
iii. Each recipient of a campaign email must have an opportunity to unsubscribe from future End User marketing emails using either a brand-specific dedicated unsubscribe page or sending an email to a valid email address. Either mechanism must remain valid for at least 30 days following deployment of the campaign email ("Opt-Out Period").
iv. Each email address from the Source File to which a campaign email was deployed will be identified as one of the following:
1. Undelivered Email: means an email that was "bounced" by the Internet Service Provider due to temporary or permanent failures.
2. Delivered Email: means a campaign email that was successfully delivered to an email address from the Source File.
3. Unsubscribed Email: means a Delivered Email to a recipient that has opted out of future email marketing communications from End User during the Opt-Out Period.
e) Unsubscribed Email File. The Email Addresses within the Unsubscribed Email File will only be used by End User for suppression purposes. All Unsubscribed Emails will be compiled into weekly files ("Unsubscribe Files") until the Opt-Out Period has expired. No other output shall be provided. End User will not use the Unsubscribe Files for any purpose other than suppressing a consumer from any further e-mail solicitations from End User. End User must honor any consumer's election to opt-out from receiving e-mail marketing solicitations from End User, whether such request is provided through Client or received directly from the recipient of a campaign email. If End User fails to honor the opt-out election of any consumer, Client may terminate this Schedule immediately upon written notice.
f) Timing. Each deployment is estimated to require between five business days and seven business days from submission of the Source Files (subject to the pre-processing requirements set forth above), Pander File and creative required. There will be a separate project plan developed and approved for each campaign under this Schedule. Such project plans will contain at least email segmentation information, deployment dates and quantities.
g) Subcontractors. End User consents to Client's use (through Acxiom) of subcontractors ("Acxiom Service Providers") for the purpose of performing the data append and/or Services described in this Schedule. Upon request, Client will disclose the identity of any such Acxiom Service Provider performing Services pursuant to this Schedule. End User authorizes Client (through Acxiom) to disclose the Source File data to the Acxiom Service Provider. Client shall be liable for Acxiom Service Provider's compliance with all applicable terms of the Agreement and this Schedule, including, but not limited to, the confidentiality provisions contained in the Agreement.
h) Email Plus. Where the End User has subscribed to the Email Plus service ("Email Plus") (which consists of prospect ad campaigns through email, web display, mobile display, and social display simultaneously), Client's Service Provider will onboard and distribute the selected audience for targeting via desktop, display, mobile, and social channels. All marketing communications used shall be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation and may not advertise, sell, or exchange any illegal or illicit products or services, including pornography, illegal drugs, or illegal weapons. End User agrees to comply with all applicable laws, rules and regulations, as well as applicable privacy policies, principles and/or best practices of the Digital Advertising Alliance.
i) End User warrants that: (i) its provision of End User Data to Client and the Data Owner hereunder does not violate any laws, intellectual property rights of any third party, or End User's published privacy policies or notice and disclosure statements under which a consumer's data was collected; (ii) all consumer records submitted for processing are Existing Customers; (iii) End User shall not use any email data delivered from the product to send an email to any consumer who has submitted an opt-out or unsubscribe request to End User electing not to receive commercial email communications from End User or has otherwise requested End User not contact such consumer by email.
6. Suppression Product.
a) Suppression Product. The Suppression Product shall be used solely for suppression of consumers from End User's marketing programs, and for no other purpose. "Suppression Product" means the suppression flags applied to End User's file, or any list or report provided to End User as a result of Data Owner's suppression processing. Data Owner shall perform all processing of End User's files through the Suppression Product at Data Owner's facilities. Due to the varying time frames that suppression files are released to the general public, Data Owner cannot guarantee that the names or telephone numbers of all consumers who have opted-out of receiving marketing solicitations have been flagged on the Suppression Product supplied to End User hereunder. Where End User has requested Bankruptcy/Deceased Suppression, and/or Bankruptcy Deceased Suppression plus Tax Liens & Judgments, Data Owner will not provide End User any information indicating whether a record dropped was a deceased individual, an individual with a history of bankruptcy, or an individual with a history of tax liens and judgments ("Reason Codes"). End User may receive summarized information derived from the processing of the Suppression Product in one of the following limited formats: (1) a summary report indicating only the number of records dropped and associated Reason Codes; or (2) a consolidated report without Reason Codes for individuals dropped (for example, grouped as deceased and bankruptcy, or deceased, bankruptcy and tax liens and judgments).
b) FTC Do Not Call Suppression. FTC Do-Not-Call (or "FTC DNC") suppression data will be used solely to comply with the Federal Trade Commission ("FTC") Telemarketing Sales Rule. End User must properly register with the FTC prior to receiving any FTC DNC suppression processing and provide Client proof of registration or exemption. FTC DNC suppressions are not applied to other Data Products received hereunder unless expressly requested in writing.
c) Wireless Phone Suppression. Wireless phone suppression ("WPS") data uses data provided by the applicable WPS Data Provider. End User agrees that WPS services may be suspended or terminated if required by the WPS Data Provider. Where possible, Client will provide written notice prior to suspension or termination. To receive WPS, End User must have registered and entered into a separate agreement with the WPS Data Provider and provided Client with verification of such registration. WPS is not applied to other Data Products received hereunder unless expressly requested in writing.
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