Terms & Conditions: Data Order Form

This Data Processing Order Form (“Order Form”) between Vistar Media, Inc. (“Vistar”) and Customer (each a “Party” and together “Parties”) is valid and binding on the Parties. The Order Form’s Terms and Conditions (“Terms”) listed here, shall govern.

1. DEFINITIONS. The definitions for some of the defined terms used in these Terms are set forth below.  

1.1. “Customer Target Campaign Data” means the data provided by Customer to Vistar describing the target audience(s) for Customer’s campaign(s). 
1.2. “Exposure Data” means data sets that Vistar may provide to Customer in connection with the Measurement Services made up of MAIDs time stamped with impressions related to applicable campaigns indicating exposure to ads. 
1.3. “Licensed Data” means the data licensed by Vistar to Customer hereunder which may include Target Data.  
1.4. “Location Data” means data sets containing encrypted MAIDs linked to certain geolocations that Vistar has sourced from third-party data providers on behalf of Customer.
1.5. “MAIDs” means mobile advertising identifiers, such as Apple’s unique identifier for advertising on iOS devices (IDFA) and Google’s unique identifier for advertising on Android devices (AAID).
1.6. “Target Data” means the data sets that Vistar may provide to Customer in connection with Targeting Services. Target Data identifies Customer’s targeting rules for the applicable campaign, namely, inventory on which the applicable campaign should run and times of day during which the applicable campaign should run. 

2. SERVICES

2.1. Service Term. The term of this Order Form is provided in the Services Term listed above.
2.2. Targeting Services. To the extent selected in the “Requested Services” section of this Order Form, Vistar shall provide certain data analysis services on behalf of Customer. Customer shall provide Vistar with Customer Target Campaign Data related to an upcoming campaign. Vistar shall, on Customer’s behalf and as instructed by Customer, obtain MAIDs, Location Data, marketing segments, and other data from Customer or from third-party providers.  Vistar shall analyze the data to create Target Data to be licensed to Customer in accordance with these Terms (the “Targeting Services”).
2.3. Measurement Services.  To the extent selected in the “Requested Services” section of this Order Form, Vistar shall, on Customer’s behalf and as instructed by Company, obtain MAIDs and Location Data from third-party providers and analyze the data to determine the exposure (i.e., ad play) resulting from a specific campaign and/or location, and use such data sets to create Exposure Data to be disclosed to Customer in accordance with these Terms (“Measurement Services”).

3. DATA.

3.1. Data Disclosed by Vistar to Customer.  Depending upon the Services ordered by Customer, Vistar shall furnish Customer with Target Data and/or Exposure Data.  All Target Data will be provided via the Vistar dashboard, shall be encrypted and shall not contain any personally identifiable information. Vistar may provide MAIDs to Customer’s third party service providers, such as other demand-side platforms (“Vendors”).  In such event, Customer shall contractually bind Vendors to substantially the following terms:  Vendor (i) may only use the MAIDs for the sole benefit of, and as authorized by, Customer and (ii) for purposes of the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq. (“CCPA”), Vendor certifies and understands that (A) it is a Service Provider (as defined under the CCPA), (B) it shall not sell (as defined under the CCPA) the MAIDs and (C) it shall not retain, use, or disclose the MAIDs for any purpose other than for the specific purpose of performing the services specified in the applicable agreement or outside of the direct business relationship between Customer and Vendor. Customer shall not instruct or permit Vendors to deviate from the foregoing, and Customer shall be liable for the acts and omissions of Vendors.
3.2. Retention of Data by Vistar. Except as specified in the Order From above, Vistar shall have no obligation to retain or store any Licensed Data for more than sixty (60) days following expiration of the applicable campaign. For the avoidance of doubt, Vistar may process Licensed Data as required by law, including, as the case may be, retaining such data beyond the retention period specified above.
3.3. Grant of Rights and Data Use Provisions.  Subject to these Terms and the Agreement, Vistar hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license during the Service Term to use the Target Data, if any, solely for the purpose of managing campaigns and making media buys on the Vistar platform.  Customer agrees to use Exposure Data, if provided to Customer, solely for the purpose of measuring the success of campaigns and other internal Customer purposes.  
3.4. Restrictions on Use of Licensed Data.  Customer shall not use the Licensed Data for any purpose other than the limited purposes described in Section 3.2 above.  Without limiting the generality of the foregoing, Customer shall not (i) resell, re-package, distribute, reproduce, publish, sublicense, disseminate, or disclose the Licensed Data, in whole or in part to any third party; (ii) re-identify, or attempt to re-identify, the Licensed Data to any individual, device, or email address, or (iii) modify, adapt, reverse engineer, decompile, disassemble, or creative derivative works from the Licensed Data.   
3.5. Customer Target Campaign Data.  Subject to the terms and conditions of these Terms and the Agreement, Customer hereby grants to Vistar a limited, non-exclusive, royalty-free, fully paid up right and license during Service Term to use Customer Target Campaign Data to perform the Services.  Customer authorizes Vistar to de-identify all Customer Target Campaign Data on Customer’s behalf and permits Vistar to use such de-identified data for any lawful purpose including, without limitation, to improve its products and services.  De-identified Customer Target Campaign Data shall not identify Customer or any individual.

4. INTELLECTUAL PROPERTY.  As between the Parties, Vistar owns and shall retain all right, title, and interest in and to the Services and the Licensed Data, including all intellectual property rights related thereto. Customer has no rights with respect to the Services or the Licensed Data other than those expressly granted hereunder.  As between the Parties, Customer owns and shall retain all right, title, and interest in and to the Customer Target Campaign Data. Neither Party has any right or license in or to the other Party’s data or intellectual property, other than those rights and licenses expressly granted hereunder or under the Agreement.  

5. CONSIDERATION.  As consideration for the Services provided and licenses granted under these Terms, Customer shall pay Vistar the fees set forth in the Order Form above.  

6. REPRESENTATIONS AND WARRANTIES.  

6.1. Necessary Rights.  Each Party represents and warrants to the other that, except to the extent that such Party operates as a processor or service provider on behalf of another entity (including but not limited to the other Party), it has obtained all necessary rights, consents and permissions to grant the data licenses granted under these Terms and to use, and permit the other Party to use, the relevant data in the manner contemplated hereunder.  To the extent that a Party operates as a processor or service provider to another entity (including but not limited to the other Party) the first Party represents and warrants that it has confirmed that all necessary rights, consents and permissions to grant the data licenses granted under these Terms and to use, and permit the other Party to use, the relevant data in the manner contemplated hereunder have been obtained.  
6.2. Compliance with Law.  Each Party represents and warrants that it shall at all times comply with all applicable federal, state, and local laws, rules, and regulations and self-regulatory guidelines, including, without limitation, laws relating to privacy and data protection, with respect to the performance of its obligations and exercise of its rights under these Terms.
6.3. Customer Obligations.  Customer acknowledges and agrees that Vistar’s performance of the Services is conditioned upon Customer’s timely and complete transmission of Customer Target Campaign Data and any other relevant information or materials.  Vistar is not responsible for any delay in performance due to Customer’s failure to provide such data and information.

7. DISCLAIMER.  THE SERVICES, THE LICENSED DATA AND ANY OTHER INFORMATION AND MATERIALS PROVIDED BY VISTAR HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE IN THIS ADDENDUM, VISTAR MAKES NO WARRANTIES WITH RESPECT TO THE SERVICES, THE LICENSED DATA, ANY OTHER INFORMATION AND MATERIALS PROVIDED BY VISTAR, OR OTHERWISE IN CONNECTION WITH THESE TERMS, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TARGET DATA IS CREATED USING A LOOKBACK AT MAIDS AND LOCATION DATA COLLECTED BY VISTAR FROM THIRD-PARTY DATA PROVIDERS, AND THAT TARGET DATA IS NOT BASED UPON LIVE DATA.  VISTAR MAKES NO WARRANTIES THAT THE LICENSED DATA WILL BE ACCURATE, COMPLETE, OR EFFECTIVE.  USE OF THE LICENSED DATA BY CUSTOMER IS AT CUSTOMER’S SOLE RISK. THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THESE TERMS AND THE AGREEMENT.

8. LIMITATION OF LIABILITY.  EXCEPT FOR LIABILITY ARISING IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS, OR CUSTOMER’S BREACH OF SECTION 3.3 OF THESE TERMS: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY DIRECT, INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THESE TERMS, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS ADDENDUM WILL NOT EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY CUSTOMER UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  THIS SECTION SHALL SURVIVE THE EXPIRATION OF THESE TERMS AND THE AGREEMENT.

9. INDEMNIFICATION.  In addition to the indemnification obligations set forth in the Agreement, each Party shall indemnify, defend, and hold the other Party, its affiliates, and its and their respective officers, directors, shareholders, employees, contractors, agents, successors, and assigns from and against any and all liabilities, losses, damages, settlements, penalties, fines, costs, and expenses (including reasonable attorney’s fees) incurred by any of such indemnified parties in connection with a third-party claim, action, or proceeding arising out of or in connection with a breach by the indemnifying Party of its representations and warranties hereunder, or the indemnifying Party’s gross negligence, willful misconduct, or fraud.  This Section shall survive the expiration or termination of these Terms and the Agreement.

10. CANCELLATION FEE. Customer acknowledges that if it cancels this Order Form early, Vistar will be harmed. Customer further acknowledges that the actual amount of Vistar’s damages from any cancellation would be difficult to calculate. Therefore, the parties agree that if a Cancellation should occur for any reason, then Customer shall pay Vistar as liquidated damages and not as a penalty, either the i) the actual amount spent by Vistar at the time of cancellation or $15,000, whichever is greater, plus any applicable taxes (a “Cancellation Fee”).