Data Use Terms

Published On:  October 08, 2024


1. General

These Data Use Terms (these “Terms”) are entered into between Merkle Inc. (“Merkle”) and the entity receiving Data Services (“Client”) and govern all services or deliverables in which Merkle provides Data Services to Client, including, without limitation, list rentals, data appends, reverse appends, file enhancement, computer services, or analytical services (collectively, “Data Services”), as described in an applicable Order for Data Services.  These Terms shall be in effect so long as Merkle Data is in the care, custody, or control of Client or any third party operating on Client’s behalf.  In the event of any inconsistency between these Terms and any other agreement (e.g., an Order) or other writing between Merkle and Client, these Terms shall control with respect to Merkle Data and Data Services.

2. Definitions

2.1 “Applicable Law” means all applicable federal, state, and local laws, regulations, rules, and judicial and administrative decisions.

2.2 “Client Data” means any data owned by Client or licensed to Client by a third-party.

2.3 “DataSource Data” means data from Merkle’s proprietary United States national consumer data product, DataSource.

2.4 “List” means a collection of consumer, household, or business records supplied from Merkle Data.

2.5 “Order” means any agreement (such as a statement of work or similar request) for Data Services mutually executed by Merkle and Client.

2.6 “Merkle Data” means any data that Merkle licenses to Client or Client’s designee in performing Data Services.

2.7 “Personal Information” means any information relating to an identified or identifiable data subject or household, and information that is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household.

2.8 “Premium Z4 Data” means any credit statistics or auto market statistics data aggregated at the Zip+4 level that Merkle licenses from a third party and provides to Client.

2.9 “Specialized Data” means any Merkle Data other than DataSource Data or Premium Z4 Data.

2.10 “Third-Party Processor” means any third-party entity engaged by Client which will receive Merkle Data from or on behalf of Client in conjunction with the Data Services.

3. Data Restrictions

3.1 Resale Prohibition. Client represents and warrants that it is not a reseller of data.  Client will not resell or otherwise provide or disclose any Merkle Data to any third party (other than a Third-Party Processor) for any purpose other than as permitted under the applicable Order.  Under no circumstances will Client attempt, directly or indirectly, to discover or reverse engineer any Merkle confidential information developed or used by Merkle in performing any Data Services.  Except as expressly authorized by the applicable Order, Client will not copy or otherwise reproduce any Merkle Data except as necessary to comply with Applicable Law or as required to comply with Client’s standard security and system back-up protocols, provided that such copies are not used or disclosed to any third party and are destroyed in the ordinary course of business.

3.2  Generative AI Products. Unless otherwise expressly agreed in writing by the parties, Client shall not use any Merkle Data in or in conjunction with Generative AI tools or products.

3.3 Merkle Data Manner of Use

3.3.1 Client will use the Merkle Data in accordance with all Applicable Laws, relevant industry guidelines (e.g., Association of National Advertisers Guidelines), and in a manner which gives due consideration to matters concerning privacy, confidentiality, and security.

3.3.2 Client will use the Merkle Data only for its own marketing purposes and only as specifically provided in an applicable Order.

3.3.3 Except as permitted in an applicable Order: (a) the Merkle Data may not be merged or incorporated with any other file; (b) none of the Merkle Data may be used to enhance a list owned by any third party, to develop any list, enhancement, or product or to prepare, publish, clean, or maintain any directory; (c) Client shall not decompile, decode, create derivatives of, or reverse engineer, any of the Merkle Data, in whole or part, or any of the processes or variables utilized in the development thereof, or act, or fail to act in such a way to attempt or to permit any of the foregoing; and (d) the Merkle Data may not be used to predict or develop a model that would predict the efficacy or suitability of any treatment for a medical condition, or the propensity for a consumer to fulfill or use a prescription drug or medical device.

3.3.4 To the extent that Merkle notifies Client of a need to remove certain Merkle Data pertaining to a particular individual or household record(s) (such as in response to a request by a data subject to exercise rights with respect to Merkle Data), Client shall immediately cease use of such Merkle Data and promptly take action (e.g., delete) as directed by Merkle. Client’s access to Merkle Data and provision of Data Services may be suspended at Merkle’s sole discretion if it reasonable believes that Client’s use of the Merkle Data or Data Services is not in accordance with these Terms.

3.3.5 Premium Z4 Data. The following provisions apply solely to the extent Merkle provides Premium Z4 Data to Client:

3.3.5.1 Client will not in any solicitation or survey refer to any selection criteria or any presumed knowledge about the recipient or provide any indication that Client possess any information about the recipient other than name and address.

3.3.5.2 Client will not use Premium Z4 Data to satisfy compliance with any legal requirement, or in connection with adult entertainment products or services, news media, for credit repair, or in conjunction with any type of automotive-related extended warranty offer or marketing.

3.3.5.3 The foregoing notwithstanding, Client shall not use single data attributes of the Premium Z4 Data for direct marketing, but Client may use the Premium Z4 Data in the creation of models, with the use of a minimum of two variables, and such models are permitted for use for offline and digital marketing purposes.  If an applicable Order authorizes use of Premium Z4 Data for modeling purposes, Client will use the Premium Z4 Data only as input variables in a model (having a minimum of two variables) that results in scores that may then be used for internal analyses, profiling, list generation, or list segmentation in accordance with Applicable Law.

3.3.5.4 Further, Client shall use the Premium Z4 Data only in a positive or inclusive manner and will not use the Premium Z4 Data to deny or exclude the offer of services or goods to a consumer or in any manner to discontinue, cancel, or deprive any individual or group of individuals of an already existing right or benefit.

3.3.5.5 Client shall not use Premium Z4 Data for any purpose at an individual consumer level, including portfolio review purposes, or to link Premium Z4 Data to or seek to determine the identity or any identifying attributes (such as name, address, Social Security number, or customer account number) of any individual.

3.3.5.6 Client shall not use Premium Z4 Data as the basis of any published analysis or study without Merkle’s express written authorization, including in any services that will be shared with any third party.

3.3.6 Specialized Data. Client’s use of Specialized Data shall be subject to additional terms and conditions incorporated by reference in the applicable Order, which supplement these Terms.

3.4 Mutual Data Obligations. Both Client and Merkle accept the following responsibilities:

3.4.1 Each party shall provide the other party with all reasonably requested assistance and cooperation to enable the other party’s compliance with Applicable Law.

3.4.2 Each party shall comply with Applicable Law in the performance of their obligations hereunder.

3.5 Data Overlay/List Enhancement Use. Unless expressly specified otherwise in the applicable Order, in no event shall Merkle Data provided for overlay or enhancement be used more than twelve (12) months after delivery. Notwithstanding the foregoing, Client shall have a perpetual license to use any appended email addresses for the purpose(s) described in the applicable Order, except as otherwise provided by Applicable Law.  Client represents and warrants that any Client list to which Merkle Data may be appended, pursuant to an applicable Order, contains no names of persons under the age of eighteen (18).  If such Client file contains such names, Merkle shall not be responsible for, and shall have no liability in connection with, Client’s use of such names.

3.6 List Use. Unless expressly stated in an applicable Order, Client is not permitted to use a List provided by Merkle beyond 12 months. However, the foregoing shall not prohibit Client from retaining Client Data pertaining to List members to the extent generated pursuant to a consumer’s response to a Client solicitation.

3.7 Append Use. Client shall be limited to using Merkle Data appended to Client Data to the lesser of the duration expressed in the applicable Order and one (1) year after delivery of such Merkle Data.

3.8 Copy Review. If requested by Merkle, Client will provide Merkle with a copy of any solicitations, advertisement, telephone script, or other similar communication (“Ad Copy”) used in connection with the Merkle Data prior to the date of use.  Merkle reserves the right to review and approve any such Ad Copy for consistency with the terms and restrictions contained herein and applicable Orders.

3.9 Location of Data: Except as expressly authorized in an applicable Order, Client will not transfer to or access/use any Merkle Data from a location outside of the United States.

3.10 Audit. For a period of at least three (3) years after each marketing communication, Client will maintain accurate and complete records pertaining to (a) the creative content of the marketing communication; (b) the distribution list of the marketing communication; and (c) the use of the Merkle Data by Client.  If Merkle is contractually obligated to provide any third party with records relating to Client’s use of Merkle Data, then upon Merkle’s request, Client will provide access to such records, which shall be deemed to be Client’s Confidential Information.

3.11 Confidential Information; Security

3.11.1 Confidentiality. Merkle Data and Data Services are Merkle’s confidential information.  Accordingly, Client shall maintain the confidentiality of Merkle confidential information in accordance with applicable terms regarding confidentiality as expressed the applicable Order.

3.11.2 Security. Client warrants that Client maintains an information security program, compliant with industry accepted standards (e.g., ISO27002), that has safeguards to protect the security of Merkle Data and that Client’s use of Merkle Data provided hereunder will be in compliance with Applicable Laws.  Client shall provide for logical and physical security of Merkle Data with the same degree of care that Client uses to protect its own confidential information, but not less than reasonable security procedures and practices appropriate to the nature of the Merkle Data.  Furthermore, Client will prevent loss, compromise, and misuse of any Merkle Data while in the care, custody, or control of Client or any third party to which Client has disclosed Merkle Data.  Client shall not grant access to Merkle Data to individuals incarcerated in correctional institutions.

3.11.3 Security Breach. Client shall provide Merkle with prompt (but in no event more than seventy-two (72) hours) written notice upon discovery of any actual or reasonably suspected unauthorized access to or use of any Merkle Data in Client’s care, custody, or control, and immediately, at its own expense, investigate and take all commercially reasonable steps to identify, prevent, and mitigate the effects of any such unauthorized access.  Client shall promptly provide to Merkle a detailed description of the incident, the Merkle Data accessed, the identity of affected consumers or other third parties, and such other information as Merkle may request about such unauthorized access, and shall assist Merkle, at Client’s own expense, in remediating the impact of any such unauthorized access.

3.11.4 Retained Ownership. Merkle has expended substantial time, effort and funds to gather and compile its various data assets and provide the Data Services.  Client agrees that Merkle Data is and shall remain, as between Client and Merkle, the property of Merkle.  Except for the specific rights expressly granted to Client in the applicable Order: (a) nothing contained in such applicable Order or these Terms shall be interpreted to convey to Client or to any other party any other right, title, or interest in the Merkle Data; and (b) all Client rights in applicable Merkle Data are constrained to the terms of the applicable Order.

3.11.5 Discontinued Use. Upon expiration or termination of the applicable Order: (a) Merkle shall cease to provide Merkle Data and Data Services; and (b) Client shall (i) immediately discontinue all use of the Merkle Data; (ii) within twenty (20) days after the effective date of such termination or expiration, destroy, and ensure all third parties operating on Client’s behalf destroy, all Merkle Data and derivatives thereof in its care, custody, or control, and (iii) certify to Merkle in writing that the foregoing has been completed.

3.12 Financial, Pricing, and Credit Laws. Each party hereby represents and warrants that it will not: (1) merge the Merkle Data with any data elements, products, or services that are subject to the Fair Credit Reporting Act (“FCRA”) or Gramm-Leach-Bliley Act;  (2) take any action in connection with any applicable Order that would cause the other party to be in violation of the federal FCRA, including the rules implementing the FCRA (15 U.S.C. §§ 1681 et seq.), and similar federal, international, state or local statutes, rules, and regulations or (3) use the Merkle Data to determine or inform pricing for products or services to individuals in violation of applicable laws, regulations, ordinances, or rules.  Merkle Data has not been collected for credit purposes and is not intended to be indicative of any consumer’s credit worthiness, credit standing, credit capacity, or other characteristics listed in the FCRA.  Client shall not use any Merkle Data in a manner that would render Merkle Data a “consumer report” as defined by the FCRA, such as for use as a factor in establishing any consumer’s eligibility for (a) credit or insurance used primarily for personal, family or household purposes, (b) employment purposes, or (c) other purpose authorized by the FCRA, or any corresponding state credit reporting law.  Client further agrees that Client shall not use Merkle Data in a manner which: (i) is subject to the FCRA or the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.); or (ii)  violates pricing discrimination or similar laws, regulations, ordinances or rules.  Merkle represents and warrants that Merkle is neither a “consumer reporting agency” nor maintains a consumer reporting database as defined by the FCRA.  Merkle further represents and warrants that under no circumstances has Merkle permitted, nor shall Merkle permit, any entity to use Merkle Data or other information provided by Merkle in a manner that causes such Merkle Data or such other information to be a “consumer report” as defined by the FCRA or any similar state or local statutes, rules, and regulations. 

3.13 Use of Third-Party Processor. If Client engages or compels Merkle to engage a Third-Party Processor, Client will identify such processor to Merkle promptly upon contracting for Data Services.  Client will ensure that its Third-Party Processor is subject to a written contract subjecting such Third-Party Processor to restrictions and obligations not less restrictive than those to which Client is subject.  Client accepts responsibility for its Third-Party Processor’s acts and omissions as if Client’s own.

3.14 Survival of Data Restrictions. This Section 3 (Data Restrictions) shall survive as long as Merkle Data is in the custody and/or control of Client.

3.15 Certification. Client certifies that (1) it will use the Merkle Data solely as permitted herein; and (2) its business is solely in one or more of the following industries:  Financial Services, General Consumer Goods, Retail, Telecommunications, Credit Card Processor, Not for Profit, Publish, Education, Energy, Utilities, Government, Manufacturing, Construction, Media, Internet-based,  Real Estate, Technology, Travel & Entertainment, Pharmaceutical, Health Care or Insurance Industries.

3.16 Merkle Warranties. Merkle warrants to Client that: (a) the Data Services will conform to the applicable Order; (b) Merkle is authorized to provide the DataSource Data and/or Premium Z4 Data to Client for the uses authorized by these Terms or an applicable Order; and (c) the DataSource Data and/or Premium Z4 Data provided to Client 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 Merkle’s sources for such data. OTHER THAN AS PROVIDED HEREIN, MERKLE DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF MERKLE DATA OR THE RESULTS THEREOF, AND DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT THERETO, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND MERKLE WILL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, COSTS, DAMAGES, OR EXPENSES ARISING OUT OF USE OF THE MERKLE DATA. MERKLE DOES NOT WARRANT THAT THE DATA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE PARTIES AGREE THAT SPECIALIZED DATA IS PROVIDED BY MERKLE “AS IS” AND WITHOUT ANY WARRANTIES. MERKLE WILL NOT PROVIDE CLIENT ANY MERKLE DATA WHICH MERKLE KNOWS HAS NOT BEEN COLLECTED IN COMPLIANCE WITH APPLICABLE LAW. IF MERKLE REASONABLY BELIEVES THAT ANY MERKLE DATA WAS NOT COLLECTED IN COMPLIANCE WITH APPLICABLE LAW, MERKLE WILL DISCUSS THIS BELIEF WITH CLIENT AND RECEIVE CLIENT’S WRITTEN APPROVAL FOR SUCH MERKLE DATA LICENSING BEFORE PROVIDING SUCH MERKLE DATA TO CLIENT. FURTHER, AND TO THE EXTENT PERMISSIBLE, MERKLE WILL PASS THROUGH ANY REPRESENTATIONS AND WARRANTIES IT RECEIVES FROM ITS DATA PROVIDERS TO CLIENT. IN NO EVENT WILL MERKLE OR ITS DATA PROVIDERS 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.

3.17 Special Notice Regarding Telemarketing Activities. Client acknowledges that certain Applicable Laws restrict telemarketing activities, including those that permit individuals to give notice that they do not wish to receive sales solicitation calls.  Due to the varying and changing nature of such Applicable Laws, Merkle makes no representation or warranty that the names or telephone numbers of such individuals have been identified on or deleted from the Merkle Data.

3.18 Indemnification of Merkle. CLIENT WILL DEFEND, INDEMNIFY AND HOLD HARMLESS MERKLE AND ITS AFFILIATES AND ALL OF ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, PARTNERS, MEMBERS OR OTHER OWNERS AGAINST ANY AND ALL THIRD PARTY ACTIONS, SUITS, PROCEEDINGS, CLAIMS, JUDGMENTS, DAMAGES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEY’S FEES, AND OTHER LIABILITIES ARISING FROM OR RELATED TO (a) Merkle’s use of Client Data; and (b) Client’s or Third-Party Processor’s failure to comply with any terms governing the use of Merkle Data or the Data Services.  Client’s indemnification obligations under this section shall be in addition to and not in lieu of Client’s indemnification obligations set forth in any other applicable agreement between Merkle (OR A MERKLE AFFILIATE) and Client (OR A CLIENT AFFILIATE).

4. Miscellaneous

4.1 Change in Laws. To comply with any changes to Applicable Law or industry self-regulatory guidelines, or in the event Client’s use of the Data Services or Merkle Data is the subject of an adverse consumer or regulatory response, Merkle may withdraw, decline to provide, or change the terms related to any Merkle Data or Data Services upon reasonable notice to Client.

4.2 Insurance. Each party shall maintain appropriate levels of cybersecurity and data protection insurance to cover any data regulatory investigation and finding, data breach and any and all related consumer and other notifications in accordance with Applicable Law.

4.3 Survival. The provisions concerning Indemnification, Warranty, and any other provisions of these Terms that expressly survive, shall survive termination or expiration of the applicable Order(s).