1.1. These M1 Platform Terms and Conditions (these “Terms”) are entered into between Merkle Inc. (“Merkle”) and the entity utilizing M1 (or on whose behalf M1 is utilized) (“Client”). Client’s use of M1, or M1 Services or use of M1 or M1 Services on Client’s behalf shall signify Client’s understanding and agreement that it is and shall be bound by these Terms with regard to any such use of M1 or M1 Services.
1.2. These Terms govern the provision of audience development and delivery via Merkle’s platform (“M1”) in support of audience insights and media targeting by or on behalf of Client (“M1 Services”).
1.3. Client shall be responsible for the action or inaction of its permitted affiliates and its or their respective service providers, including Client’s advertising agency (“Agency”) or Ad Delivery Platforms which access M1, M1 Services, or M1 Audiences on Client’s behalf as if such action or inaction was taken by Client.
1.4. By authorizing the M1 Services, Client authorizes Merkle to
- utilize third-party data to form, expand, or refine audiences;
- to the extent available within M1, size audiences relative to integrated Ad Delivery Platforms;
- format and deliver M1 Audiences to applicable Ad Delivery Platforms, as directed by Client; and/or
- evaluate utilization of M1 Audiences as reasonably necessary to assess usage fees and fulfill applicable obligations to data suppliers.
2.1. “Ad Delivery Platform” means a media company, publisher, platform, network, or other party that sells or attempts to sell ad inventory or facilitates Audience delivery for purposes of displaying targeted advertisements (e.g., demand-side platforms (“DSP”), sell-side (or supply-side) platforms (“SSP”), or data management platforms (“DMP”).
2.2. “Applicable Law” means all laws, regulations, and requirements (including subpoena, judicial order, and administrative or regulatory body ruling) imposed by a governmental body which apply to Client, Merkle, M1, and the M1 Services.
2.3. “Client Audience Data” means any audience data that Client directly or indirectly provides for use within M1.
2.4. “Data Onboarding Provider” means a third-party provider of data integration and delivery services to support M1 Audience delivery to Ad Delivery Platforms.
2.5. “Improved Audience” means an M1 Audience that is formed, expanded, refined, or otherwise informed by Merkle-supplied data in conjunction with M1 Services.
2.6. “M1 Audience” means an audience developed and/or delivered in conjunction with the M1 Services.
2.7. “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, or as otherwise defined by Applicable Law.
2.8. “Premium Data” means data from data suppliers to M1 that are subject to additional terms and incremental fees.
2.9. “Pseudonymous Personal Information” means Personal Information that has been processed in a manner that renders the Personal Information no longer attributable to a specific individual or household without the use of additional information
2.11. “Sensitive Data” means: (a) Personal Information related to a data subject under the age of sixteen (16); (b) person’s name in conjunction with any government issued identification or card numbers including, but not limited to, driver’s license numbers and social security numbers; (c) person’s name with mother’s maiden name; (d) telephone numbers identified as unlisted or unpublished; (e) credit card, debit card, or financial account numbers with the associated name or any required PIN or access code; (f) medical or health information pertaining to an identified individual; (g) information containing payroll or financial information with associated employee identifiers; (h) data regarding sexual orientation; (i) data regarding religious affiliation; (j) precise location data (other than consumer residential address); or (k) any other data as described by Applicable Law.
2.12. “Specialized Data” means customized third-party data provided in connection with M1 Services, including but not limited to, data from custom sources, custom curated, or otherwise provided for Client. Specialized Data will be subject to additional fees and may require Client’s acceptance of specific terms and conditions before use or delivery.
2.13. “Standard Data” means Merkle DataSource™ data, M1 Panel segments, and other data available in M1 for use in digital targeting that is not classified as Premium Data or Specialized Data.
2.14. “Unimproved Audience” means an M1 Audience which is formed exclusively of Client Audience Data without expansion, filtering, suppression, or other modification informed by Merkle-supplied data.
3. Data Use Permissions and Limitations
3.1. Use of Client Audience Data
In connection with the M1 Services, Client may, at its discretion, provide Client Audience Data. To the extent Client provides Client Audience Data, Client expressly permits processing by Merkle, its agents, employees, vendors, or representatives, as necessary, to provide M1 Services, which includes, without limitation:
- to perform data hygiene and standardization of Personal Information;
- to assign pseudonymized record identifiers;
- to onboard Client Audience Data for creation and delivery of M1 Audiences, including via sublicense to the applicable Data Onboarding Providers;
- to perform analysis describing the characteristics of audiences in the Client Audience Data and the size of potential audience reach among intended audience destination(s);
- to create and deliver M1 Audiences to Ad Delivery Platform(s); and/or
- to maintain listing of Client-specific suppressions of individuals and/or households as specified by Client.
3.2. Use of M1 Audience Data
- Client will adhere to all applicable terms and conditions of any Ad Delivery Platform receiving M1 Audiences.
- Client will only use M1 Audiences for its (and, as agreed between Client and Agency, its affiliates’) own marketing.
- Client acknowledges that the provision of M1 Audiences may constitute a sale under Applicable Law. Client acknowledges and understands that it is restricted from selling or disclosing (whether for monetary or other valuable nonmonetary consideration) M1 Audiences or the M1 Services, and from providing access to M1 Audiences to third parties (excluding Agency and Ad Delivery Platforms).
- Client will not, and will not permit any third-party to, use or attempt to use data derived from M1 Services, to: (a) reverse engineer or otherwise discern the user base of a publisher or Ad Delivery Platform; (b) to target M1 Audiences developed for a particular Ad Delivery Platform on any other Ad Delivery Platform; (c) create derivative audiences from M1 Audiences outside of the M1 Services or to create derivative works of M1; (d) deanonymize or re-identify individuals (except where the individual-level Personal Information is Client’s original proprietary data, and performed independent of M1 Audiences); or (e) surface or expose individual-level detail of M1 Audiences, or otherwise reverse engineer any data from or any of the features or functionality of M1.
- Client will not (a) attempt to target based on restricted data classes including, but not limited to, Sensitive Data; (b) use the M1 Services to identify specific individuals, households, or groups smaller than twenty-five (25); or (c) use M1 Services to sell or advertise adult entertainment, tobacco, illegal gambling, firearms, or other illegal activity.
- Client will ensure that its (and as agreed between Client and Agency, its affiliates) employees, representatives, vendors, and agents accessing M1 Services or M1 Audiences adhere to the applicable provisions of these Terms and will be responsible for the action or inaction of such affiliates, employees, representatives, vendors, and agents.
3.3. Audience-Enabled Data Use
Client will provide or ensure the provision to Merkle of sufficient access to all Ad Delivery Platforms to whom M1 Audiences are provided as reasonably necessary to deliver, monitor, and measure use of M1 Audiences. Such access must include, at least, access to or provision of campaign and audience usage detail which may include Pseudonymous Personal Information (the “Audience Usage Data”). Client will or will ensure the provision of such Audience Usage Data to Merkle within ten (10) business days following ad delivery. For clarity, Audience Usage Data minimally includes: (a) unique identifier and/or descriptive name of model score(s), segment(s), audience(s), or similar; (b) number of records; (c) list of all applicable Merkle data utilized; (d) indication of whether Client data was utilized; and (e) indication of whether non-Merkle data was utilized. Notwithstanding anything to the contrary herein, Merkle may retain Audience Usage Data for the duration of M1 Services and up to one (1) year thereafter, as reasonably necessary to assess usage fees and fulfill applicable obligations to data suppliers.
4. Ownership; Rights on Termination
4.1. Client retains all right, title, and interest in and to any and all Client Audience Data. No right, title, or interest in M1, M1 Services, or M1 Audiences is transferred to Client other than as expressly set forth in these Terms. Any rights granted to Client hereunder will be limited to the term of the applicable M1 Services and may be used only for the purposes described herein. M1 Audiences are not works for hire. Client will safeguard M1 Audiences and all data and documentation related to M1 as proprietary and confidential to Merkle. For avoidance of doubt, Client does not acquire rights to data and technical components furnished through, developed by, or generated by M1.
4.2. Upon the earlier of the expiration or effective date of termination of M1 Services:
- Client will immediately cease the use of the M1 Services and all Improved Audiences. Client will itself, and will ensure all Client’s permitted affiliates and its and their respective employees, representatives, vendors, and agents, including Agency, within ten (10) business days following end of M1 Services, permanently delete (or, to the extent third party platforms do not support deletions, permanently disable) Improved Audiences and all data related to Improved M1 Audiences in its or its affiliates’ employees, representatives, vendors, and agents’ care, custody, or control.
- Merkle will no longer use M1, M1 Services, or M1 Audiences for the benefit of Client. Merkle will promptly delete all Client Audience Data in its care, custody, or control.
5. Responsibilities of the Parties
5.1. Mutual Responsibilities
- Each party will provide appropriate notices and opt-out opportunities to applicable consumers with the understanding that any such notice and/or opt-out opportunity will be separate from any notice or opt-out opportunity originally provided to such consumers by the other party.
- Each party will implement procedures designed to protect against claims of non-compliance with respect to Rules.
- Neither party will process or request the processing of Personal Information for individuals or households outside of the United States or other data that would require compliance with laws outside of the United States (e.g., the EU’s GDPR).
5.2. Client Responsibilities
- Client will ensure that any Client Audience Data it provides is complete and conforms to M1’s specifications and accepts responsibility for any actions required to conform to M1’s specifications.
- To the extent that Merkle notifies Client to discontinue use of a given M1 Audience or to selectively remove records from M1 Audiences (such as in the event of a consumer’s exercise of rights as provided under Rules), Client will itself and will cause any third-party possessing such M1 Audience to (a) immediately discontinue any use of such M1 Audiences and M1 Audience records and (b) promptly permanently delete such M1 Audience or applicable M1 Audience records.
6. Representations and Warranties
Each party represents and warrants that it:
- will not intentionally transmit Sensitive Data to the other party unless mutually agreed to do so in writing;
- has procured and will maintain the necessary rights to all data it furnishes, and no additional permissions are required from third parties for use of such data as permitted hereunder;
- will not provide data of individuals or households located outside the United States or that would subject the other party to laws outside of the United States (e.g., the EU’s GDPR);
- will not deliver or use M1 Audiences (or derivatives thereof) on media properties or otherwise for serving advertisements outside the United States;
- will adhere to applicable Rules; and
- will constrain use of M1 Audiences to only those uses expressly permitted in these Terms.
M1 Services shall be at the rates prevailing when the M1 Audience is activated.
8.1. Confidential Information
Each party will have access to Confidential Information of the other. For the purposes of these Terms, “Confidential Information” shall mean any written or oral information, whether or not created by or for the other party, disclosed by either party during performance under these Terms.
Confidential Information shall not include information which (a) was in or enters the public domain through no breach of these Terms by the receiving party; (b) was lawfully in the receiving party’s possession prior to such disclosure and without obligation of confidentiality; (c) was received by the receiving party from a third party not known by the receiving party to be under an obligation of confidentiality; (d) was independently developed by the receiving party without any use of the disclosing party’s Confidential Information; or (e) the disclosing party has pre-approved the right to disclose in writing.
8.3. Non-Use and Non-Disclosure
Neither party shall use or disclose the other party’s Confidential Information except as required by Applicable Law or to perform its obligations under these Terms. Each party will employ the same measures that it uses to protect its own Confidential Information, which shall not be less than reasonable care, to protect the Confidential Information of the other party from unauthorized or inadvertent use or disclosure. In the event that the receiving party receives a request from a third party requiring the production of information pertaining to the disclosing party, the receiving party will give the disclosing party prompt notice, to the extent permitted by law. The disclosing party will hold the receiving party harmless from, and also assumes responsibility for, any expenses (including without limitation attorney’s fees, court costs, data retention costs, e-discovery costs, costs incurred by outside advisors and any other cost imposed whether by way of penalty or otherwise) incurred by the receiving party as a result of such request.
TO THE FULLEST EXTENT PERMITTED BY LAW, MERKLE ON BEHALF OF ITSELF AND ITS AFFILIATES EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, FOR SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE M1 SERVICES AND MERKLE, ITS AFFILIATES, AND PARTNER DATA ARE PROVIDED “AS IS” AND AT CLIENT’S OPTION AND RISK AND NONE OF MERKLE, ITS AFFILIATES OR MERKLE’S PARTNERS MAKE ANY GUARANTEE OR REPRESENTATION IN CONNECTION WITH RESULTS OF CLIENT’S USE OF M1 SERVICES. MERKLE DOES NOT GUARANTEE SERVICES WILL BE UNINTERRUPTED, THAT AD DELIVERY PLATFORMS WILL PROCESS M1-DEVELOPED AUDIENCES, OR THAT ANY PORTION OF INTENDED AUDIENCES WILL BE REACHED WITHIN AD DELIVERY PLATFORMS.
10. Indemnification and Limitation of Liability
10.1. Each party (as the “Indemnifying Party”) will indemnify, defend, and hold harmless the other party and its affiliates, including it and their respective executives, directors, and employees (each an “Indemnified Person”) from and against all costs, losses, damages, liabilities and expenses (including reasonable outside attorneys' fees), caused by any third-party claim (“Claims”) arising hereunder out of (a) such Indemnifying Party’s (i) breach of their respective representations and warranties under these Terms or (ii) gross negligence or willful misconduct and (b) where Client is Indemnifying Party, the acts or omissions of itself, its affiliates, vendors, or its service providers. Partners of Merkle and its affiliates supporting M1 Services, including, without limitation, Data Onboarding Providers, are intended third-party beneficiaries of this section.
10.2. EXCEPT IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S TOTAL LIABILITY FOR ANY OR ALL OF THEIR RESPECTIVE LOSSES FROM THEIR RESPECTIVE ACTS OR OMISSIONS UNDER THESE TERMS, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NOT EXCEED THE TOTAL M1 SERVICES FEES INCURRED DURING THE 12 MONTHS PRIOR TO THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM. FURTHER, WITH REGARD TO ANY PERFORMANCE CONCERNS, TO THE EXTENT THAT APPLICABLE LAWS PERMIT MERKLE TO LIMIT ITS OBLIGATIONS, MERKLE’S LIABILITY UNDER SUCH APPLICABLE LAWS WILL BE LIMITED TO THE SUPPLY OF THE M1 SERVICES AGAIN.
10.3. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF IT IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE.
Neither party may assign these Terms without the written consent of the other party; provided, however, a party may assign these Terms to an affiliate or successor of such party or pursuant to a merger, consolidation, reorganization, or sale of all or substantially all of the assets of the business to which these Terms relate if such successor or affiliate agrees in writing to be bound by all of the terms and provisions of these Terms. Any purported assignment in contravention of this section shall be null and void.
Any notice required or permitted by these Terms shall be in writing and addressed to the other party’s primary contact with a copy to the other party’s legal department. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable). These notice requirements do not apply to legal service of process, which is instead governed by Applicable Law.
13.1. These Terms are governed by and construed in accordance with the laws of State of New York, without giving effect to conflict of law rules. Each party irrevocably consents and submits to the exclusive personal jurisdiction of the state and federal courts located in New York, New York for any matter arising out of or relating to these Terms, except that in actions seeking to enforce any order or any judgment of such federal or state courts, such personal jurisdiction shall be nonexclusive.
13.2. These Terms constitute the entire agreement between the parties relating to M1, M1 Services, and the subject matter thereof, represent the complete understanding of the Parties, either oral or written, and supersede any prior written or oral agreements, representations, and discussions between the Parties related thereto. If for any reason a court of competent jurisdiction finds any provision of these Terms to be unenforceable, that provision will be enforced to the maximum extent permissible so as to impact the intent of the parties, and the remainder of these Terms will continue in full force and effect. The waiver by either party of any right hereunder, the failure to perform, or a breach by the other party shall not be deemed a waiver of any other right hereunder, failure to perform, or breach by said other party whether of a similar nature or otherwise.
13.3. The M1 Services are not subject to any audit or review which would cause Merkle, its affiliates, or its service providers to disclose their costs or profits associated with provision of M1 Services. Notwithstanding the foregoing, Merkle will submit to reasonable review of its fees for M1 Services relative to applicable volumetric charges.
13.4. Client’s access to and benefits from the M1 Services may be suspended at Merkle’s sole discretion if it reasonably believes the Client’s use of M1 Services would violate the rights of Merkle, its affiliates, its partners, Ad Delivery Platforms, other service providers, or clients.