Custom Data Processing Terms
These terms and conditions (“Terms”) apply to how you may share a list of your (or your Clients’) U.S. customers, prospects or other U.S. individuals or households (“Custom Data”) with a4 Media, LLC (“a4 Media,” “us,” “we”) with us and how we may process such Custom Data.
IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT SHARE ANY CUSTOM DATA WITH US.
AUTHORIZATION TO CONTRACT FOR CLIENTS
If you are contracting for services on behalf of a client (“Client”), then (i) you warrant that you are fully authorized to agree to these Terms on such Client’s behalf and to provide the Client’s data as contemplated herein and (ii) you shall be directly liable to us for any services contracted on behalf of the Client and any related obligations, regardless of whether you are paid or otherwise compensated therefor by the Client.
SECURE TRANSMISSION REQUIRED
Custom Data may only be shared with us using a secure method of delivery acceptable to us (“Delivery Method”). We acknowledge and agree that Hightail.com provided by Open Text Corporation (“Hightail”) is a Delivery Method acceptable to us. If you choose to share Custom Data with us using Hightail, you agree to comply with the Hightail terms and conditions. You agree that in no event with Company Data be emailed or otherwise delivered to us in an unsecure manner.
All Custom Data must be in a format reasonably designated by us. We may impose restrictions on the fields that may be uploaded and minimum requirements for unique records in uploaded files and match files to comply with our data privacy requirements and those imposed by our ad serving partners. We reserve the right to accept or reject any proposed Custom Data in our sole discretion, however no acceptance by us shall impact your warranties hereunder regarding the Custom Data.
You hereby authorize us and our agent(s) to access and use the Custom Data to provide data processing and related services (including without limitation data matching, data modeling, audience creation, campaign activation, pre- and post-campaign data analytics services and reporting), or as otherwise agreed in writing (“Permitted Use”) to you or your applicable Client as mutually agreed in writing from time to time. 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 their actions or omissions in their performance of such services.
REPRESENTATIONS AND WARRANTIES
By sharing Custom Data with us, you agree to comply with all applicable laws, rules and regulations, including those relating to information privacy and security (“Laws”) and all applicable privacy policies. You expressly represent and warrant that (i) you have all necessary rights to share Custom Data with us for the Permitted Use, (ii) our (or our agents’) use of the data as contemplated herein or in a separate written agreement will not infringe any Laws or third party’s rights, (iii) all such data has been collected, maintained and provided in compliance with all Laws and applicable privacy policies that clearly disclose (a) the data collected, (b) that such data may be used by you (and/or your client, as applicable) and shared with third parties, including for advertising purposes, and (c) how users can effect opt-out choices, (iv) in no event will the Custom Data include any sensitive data, which if lost, compromised, or disclosed without authorization could result in substantial harm or unfairness to an individual (such as sexual orientation, non-conforming gender identify (such as transgender status), religion, health information or conditions, or any data regarding a person under the age of eighteen (18)), (v) unless otherwise agreed to by us in a separate written agreement, such data is not regulated (e.g., data subject to HIPAA or Gramm-Leach-Bliley regulations), and (vi) to the extent the provision of such data constitutes a Sale of Consumer Personal Information under the California Consumer Privacy Act of 2018, as amended (“CCPA”), each such Consumer has received explicit notice of such Sale and the opportunity to exercise the right to opt-out in accordance with the CCPA.
All capitalized terms used in this paragraph but not otherwise defined shall have the meanings ascribed to them under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). If the Custom Data includes Protected Health Information (PHI), you represent and warrant that you are a Covered Entity permitted to use or disclose such PHI with us as a Business Associate and you will not request us to use or disclose PHI in any manner that would not be permissible under HIPAA if done by you as the Covered Entity. You agree to notify us of (i) any limitations in your Notice of Privacy Practices, to the extent that such limitation may impact our use or disclosure of PHI, (ii) any changes in, or revocation of, the permission by an individual to use or disclose his or her PHI, to the extent that such changes may affect our use or disclosure of PHI, and (iii) any restriction on the use or disclosure of PHI that the Covered Entity has agreed to or is required to abide by under 45 C.F.R. §164.522, to the extent that such restriction affects our use or disclosure of PHI.
Notwithstanding anything herein to the contrary, all data access and reports provided to you or your Clients, and including access and reports provided by the “Alice” Platform, shall be on an aggregated and anonymized basis. For purposes of these Terms, “aggregated and anonymized” means that data is in a form such that no individual, household or device is identified or identifiable (using that data alone or in combination with any other data).
NO REVERSE ENGINEERING OR RE-IDENTIFICATION
In no event shall you or we attempt to (i) “reverse engineer” or re-identify any persons, devices or households from any de-identified data developed or provided hereunder or (ii) determine any sensitive data regarding any persons, devices or households included in the data being processed hereunder. You shall not 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.
You and we agree that any data processing results hereunder shall be deemed “Confidential Information” of each of us, and the Custom 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 Custom 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 campaign exhaust, log-level data, or targeting audience created as a result of any services hereunder.
DESTRUCTION OF INFORMATION
Unless you expressly agree otherwise, we shall destroy the Custom Data within thirty (30) days following the completion of our processing services, and we shall destroy any modeled or matched targeting audience based on Custom 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.
You acknowledge and agree that a Delivery Method may be temporarily unavailable from time to time for maintenance or other reasons, and a4 Media does not warrant such Delivery Method’s availability or that the Delivery Method will be uninterrupted or error-free. a4 Media reserves the right to discontinue the use of a Delivery Method (e.g., Hightail) to receive Custom Data at any time for any reason.
YOUR USE OF A DELIVERY METHOD IS AT YOUR OWN RISK. A4 MEDIA DOES NOT MAKE ANY EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES OR GUARANTEES IN CONNECTION WITH A DELIVERY METHOD OR RELATING TO THE AVAILABILITY, QUALITY, OE RELIABILITY THEREOF. A4 MEDIA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY AND NON-INFRINGEMENT, AND THOSE ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, 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 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.
You and the Client (if applicable) agree to indemnify and hold a4 Media, its affiliates, and each of their respective officers, directors, agents and representatives (the “a4 Parties”) harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or relating to your use of the, any Custom Data you provide, and any violation of these Terms, any Laws or any rights of any third party by you or, if applicable, the Client.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NO A4 PARTY SHALL BE LIABLE TO YOU OR THE CLIENT (IF APPLICABLE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (REGARDLESS OF FORESEEABILITY AND EVEN IF AN A4 PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR THE INABILITY TO USE ANY DELIVERY METHOD (INCLUDING HIGHTAIL) OR ANY OTHER MATTER RELATING THERETO.
GOVERNING LAW; JURISDICTION
These Terms 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.
No waiver of any provision of these Terms by a4 Media shall constitute a continuing waiver unless the intention to grant a continuing waiver is expressly stated in writing. These Terms 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 these Terms 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 modified to reflect the original intent of the parties), and the remaining provisions shall continue in full force and effect.
“a4,” “a4 Media” and a4 Media’s other graphics, logos, designs, and service names are trademarks or trade dress of a4 Media and may not be used without a4 Media’s prior written permission. “Hightail” is a trademark of Open Text Corporation.
CHANGES TO THESE TERMS
We may revise these Terms at any time by posting any changes and/or updates directly on this page. We encourage you to visit this page periodically to review our current Terms.
Effective: August 1, 2022