IRI Automated Audiences on Facebook

This IRI Service Agreement for Automated Audiences on Facebook (this “Agreement”) contains the terms and conditions that govern your access to and use of the IRI Audience Segments (as defined below) and is an agreement between Information Resources, Inc. (also referred to as “IRI,” “we,” “us,” or “our”) and you or the entity you represent (“Client,” “you,” or “your”). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you submit any insertion order (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.

If you do not agree to the terms of this Agreement, please do not use the Services or IRI Audience Segments. IRI reserves the right, at its discretion, to update or revise the terms of this Agreement. The amended version will be effective at the time IRI posts it. We may provide you with notice of certain changes to the Agreement on the homepage for accessing the Services. Your continued use of the Services or IRI Audience Segments following the posting of any changes to this Agreement constitutes your acceptance of those changes. No revision or update will apply to a dispute of which IRI had actual notice on the date IRI posts the amended version.

IRI offers IRI Verified Audiences audience segments that you may activate on Facebook (the “IRI Audience Segments”), which are audience segments built on deidentified frequent shopper program purchase behavior data.  This Agreement establishes a framework under which Client can easily order IRI Audience Segments until the expiration or termination of the Term hereof.

Agreement:

1. Term. The “Term” of this Agreement starts on the Effective Date and ends upon completion of the Campaign End Date provided in your insertion order, unless earlier terminated according to this Section 1. You may terminate this Agreement for any reason upon five (5) business days advance written notice to IRI. We may terminate this Agreement for any reason by providing you at least ten (10) business days advance notice. We may immediately terminate this Agreement if you use IRI Audience Segments in violation of the terms of this Agreement. 
2. Insertion Order. Client’s submission of its contact information, billing information, campaign information (including Campaign End Date), and selection of IRI Audience Segments constitutes an insertion order for purposes of this Agreement. IRI’s acceptance of an insertion order will be communicated via email to Client at the email address provided in the insertion order.
3. Delivery. After acceptance of the applicable insertion order, IRI shall deliver the IRI Audience Segments covered by such insertion order via third-party onboarder selected by IRI. An IRI Audience Segments is deemed delivered when IRI makes the target available at the applicable onboarder by approving activation and notifying Client, via email, of such activation approval.   Delivered IRI Audience Segments shall be referred to as “Delivered Segments.”
4. Permissible Use. With respect to an accepted insertion order, during the Term, IRI grants Client a limited, non-exclusive, revocable, restricted-use right and license to access and use the Delivered Segments ordered in such insertion order for the purpose of activating, on Facebook, the campaign specified in such insertion order (and any additional campaigns that may be approved in writing by IRI (email is sufficient)).  Unless otherwise agreed in writing by IRI, Client may not use IRI Audience Segments in any way or for any purpose other than to activate the campaign on Facebook or Instagram as specified in the applicable insertion order. Without limiting the foregoing, Client shall not use IRI Audience Segments for insights, retailer cobranded programs, segmentation, seed data, and/or modeling of new segments.  Unless otherwise agreed by IRI in writing, Client may not use any Delivered Segments after the Term. Client may not use any Delivered Segments in any manner that violates applicable privacy and data protection laws.
5. Fees. 
1. Media Spend. Client shall pay IRI a rate of fifteen percent (15%) of Client’s Facebook media spend for a campaign that uses any Delivered Audience. “Facebook media spend” means the gross fee paid by or on behalf of Client to Facebook to display the ad. Client shall pay IRI upon submission of the applicable insertion order by credit card, unless IRI permits Client payment of an invoice.
2. Credit Card Payment Terms. IRI accepts payment via the current payment method indicated prior to purchase, which may include Stripe, PayPal, Square, Authorize.net and/or any other form of payment that we make available to you from time to time. You agree to abide by any relevant terms of service or other legal agreement (e.g., without limitation, the Square General Terms of Service), whether with IRI or a third party, that governs your use of a given payment processing method. You agree to pay for any IRI Audience Segments that you order. IRI will charge your credit card the Facebook media spend rate, along with any additional amounts relating to applicable taxes, bank fees and currency fluctuations.
3. Taxes. Client shall be responsible for, and shall promptly reimburse IRI with respect to all sales, use, value-added, and other similar taxes and charges, however designated, properly imposed by any governmental body or agency with respect to the Services provided to Client pursuant to this Agreement. The parties shall provide mutual reasonable cooperation in order to minimize taxes, including the provision of properly executed exemption certificates. For clarity, Client shall not be responsible for taxes imposed on IRI’s net income, property, or payroll.
6. Additional Terms of Use.
1. Mutual Reservation of Rights. Each party reserves, for itself and for its applicable licensors, any intellectual property or other pre-existing proprietary rights not expressly granted in this Agreement. No license or right to any such intellectual property or other pre-existing proprietary right is granted to the other party, unless expressly granted under this Agreement. IRI and its licensors retain all rights in materials and services owned or developed by IRI or its licensors prior to or during the Term. Nothing herein shall prevent IRI from providing or otherwise considering, either internally or on behalf of third parties, services similar to or of the same nature as the IRI services being provided under this Agreement.
2. Effect of Termination. Upon termination of this Agreement for any reason or at any earlier time upon Client’s request: (a) IRI shall return to Client all copies of Client’s Confidential Information in IRI’s possession or control, (b)  Client shall return to IRI all copies of IRI’s Confidential Information in Client’s possession or control and (c) except as otherwise set forth herein, the rights and obligations of both parties shall cease and any licenses granted by either party to the other herein shall terminate. If Client terminates this Agreement and/or suspends the services (other than for IRI material breach and failure to cure) after Client uses a Delivered Segment, Client shall pay for the Delivered Segments used by Client prior to the termination. If Client terminates this Agreement and/or suspends the services (other than for IRI material breach and failure to cure) after IRI’s third-party onboarder has performed the matching services required for IRI to deliver the Delivered Segments but before Client has used a Delivered Segment, Client shall pay IRI $2,5000, which is the amount IRI pays its third-party onboarder to perform the matching service necessary for IRI to deliver a Delivered Segment. 
3. Confidentiality. “Confidential Information” means any non-public information of either party relating to its business activities, operations, financial affairs, technology, marketing or sales plans that is disclosed to the other party under this Agreement. Confidential Information includes, but is not limited to, the terms and pricing of this Agreement. Except as expressly permitted in this Agreement, neither party will use or disclose the Confidential Information of the other party without the prior written consent of the other party. IRI may disclose Client’s Confidential Information without Client’s prior consent to subcontractors who have a need to know such information related to the provision of the Services if such subcontractors have agreed to be bound by confidentiality obligations at least as stringent as those contained in this Agreement. The use and disclosure restrictions in this paragraph will continue during the Term and for three (3) years after its expiration or termination. However, a party’s trade secrets will be subject to such use and disclosure restrictions for as long as the applicable information is deemed a trade secret or otherwise protected under applicable law. Confidential Information will not include information which (i) is or becomes public knowledge through no breach of the Agreement by the receiving party, (ii) is received by the receiving party from a third party that is not subject to any confidentiality obligations with respect to such information, or (iii) is already known or is independently developed by the receiving party without use of the Confidential Information. Each party will take all reasonable precautions to protect the other party’s Confidential Information from third parties, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information.
4. Privacy and Data Protection. At all times, in addition to the obligations set forth in Exhibit A, each party may be subject to laws in multiple jurisdictions worldwide that relate to: (i) the confidentiality, collection, use, handling, processing, security, protection, transfer, or free movement of personal data, personal information, deidentified information, or other information governed by applicable privacy or data protections laws, rules, or regulations; (ii) electronic data privacy; (iii) trans-border data flow; and/or, (iv) data protection and information security.
5. Limited Warranties. Each party represents, warrants and covenants to the other party that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party; (iii) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered and (iv) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations. IRI further represents, warrants and covenants to Client that: (A) the IRI Audience Segments, Delivered Segments, and any and all other information, content, products, services and materials provided by or through IRI hereunder (collectively, the “IRI Materials”) shall substantially conform to and perform in accordance with the applicable specifications,  requirements and criteria set forth or otherwise referred to in this Agreement; (B) the IRI Materials will be provided in a manner consistent with best industry standards and in accordance with all applicable, laws, rules, regulations or policies (including, without limitation, all United States and European data protection laws and directives and COPPA); (C) IRI owns, licenses and/or has all rights and interest necessary to grant Client the rights in and to the IRI Materials, including, without limitation, the right to use the IRI Audience Segments, and/or Delivered Segments for the Permissible Use; (D) the IRI Materials were obtained, collected and compiled using methods that fully comply with all applicable laws, rules and/or regulations and without employing any deceptive or illegal act or practice; (E) IRI and/or its licensors have obtained all necessary consents from any individuals whose data is made available by or through IRI in connection with this Agreement to access, collect, store, use and share with third parties the IRI Audience Segments, and/or Delivered Segments as is required by all applicable laws, rules and regulations and IRI’s and/or its licensors’ privacy policies; and (F) use of the IRI Audience Segments, and/or Delivered Segments for the Permissible Use shall not violate any applicable laws, rules and/or regulations.
6. Warranty Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ALL IRI SERVICES, IRI AUDIENCE SEGMENTS, DELIVERED SEGMENTS AND OTHER ITEMS PROVIDED BY IRI ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, OR STATUTORY.  EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, IRI MAKES NO OTHER REPRESENTATIONS OR WARRANTIES AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, TIMELINESS, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING IN THE COURSE OF DEALING, USAGE OR TRADE PRACTICE. IRI MAKES NO WARRANTY THAT THE AVAILABILITY AND FUNCTIONALITY OF THE IRI SERVICES, IRI AUDIENCE SEGMENTS OR DELIVERED SEGMENTS ARE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.
7. Indemnification. Client agrees to indemnify, defend and hold IRI and its affiliates and their respective officers, directors, employees, representatives and agents harmless from and against any and all third party claims, damages, losses, liabilities or expenses (including reasonable attorneys’ fees) arising from or related to Client’s misuse of the Delivered Segments or any IRI data incorporated in any Delivered Segments in any manner not specifically authorized by the Agreement. IRI agrees to indemnify, defend and hold Client and its affiliates and their respective officers, directors, employees, representatives and agents harmless from and against any and all third party claims, damages, losses, liabilities or expenses (including, without limitation, reasonable attorneys’ fees) arising from or related to (i) any gross negligence or willful misconduct of IRI; and (ii) any claim that alleges that Client’s use of any IRI Materials infringes any  patent, copyright or trademark rights, provided that Client’s use of the IRI Materials complies with the terms of this Agreement. Notwithstanding the terms of subsection (ii) above, IRI will have no liability for any claim of infringement based on (x) the combination of Delivered Segments with other data, if such infringement could have been avoided by not combining Delivered Segments; or (y) the modification of IRI Audience Segments, if such infringement could have been avoided by not modifying Delivered Segments. If Delivered Segments have become (or in IRI’s reasonable judgment is likely to become) the subject of an infringement claim: IRI will, at its option and expense, (1) replace or modify Delivered Segments so they are no longer infringing, or (2) if (1) is not commercially reasonable to IRI, then following consultation with Client, IRI may terminate the IRI services and/or Client’s use of Delivered Segments provided, that IRI will refund any pre-paid fees. THIS PARAGRAPH STATES THE ENTIRE LIABILITY OF IRI WITH RESPECT TO INFRINGEMENT OF THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER PROPRIETARY RIGHTS, BY IRI AUDIENCE SEGMENTS.
8. Limitation of Liability. EXCEPT FOR EITHER PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY (WHICH INTELLECTUAL PROPERTY OF IRI INCLUDES, WITHOUT LIMITATION, IRI AUDIENCE SEGMENTS AND/OR DELIVERED SEGMENTS), INDEMNIFICATION OBLIGATIONS, BREACH OF CONFIDENTIALITY OBLIGATIONS, ANY DAMAGES RESULTING FROM A PARTY’S FRAUD, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, AND/OR ANY DAMAGES RESULTING FROM PERSONAL INJURY OR PROPERTY DAMAGES, (I) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION LOST REVENUES OR PROFITS) REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, AND REGARDLESS OF WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND (II) THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY RELATED TO A CLAIM UNDER THIS AGREEMENT WILL BE LIMITED TO THE LESSER OF (A) $50,000 OR (B) THE TOTAL AMOUNT PAID OR PAYABLE TO IRI UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
9. Press Release. Neither party shall use the name, service or trademarks, logos or otherwise identify or refer to the other party and/or this Agreement in any press releases, publicity, marketing or promotional material without the prior, express approval of such other party in each instance.
10. Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, strikes, governmental action, unusually severe weather, or acts of God or public enemy (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
11. Independent Contractors. The parties agree that their relationship under this Agreement will be that of independent contractors, and there is no relationship between the parties other than independent entities to a commercial contract. This Agreement does not form any partnership, joint venture, employee-employer, franchiser- franchisee, or agency relationship between the parties and neither party will hold itself out as being able to bind the other.
12. Applicable Laws/Miscellaneous. All matters relating to or arising under this Agreement shall be governed by the laws of the State of New York without regard to conflict of laws. The parties agree that money damages may not be a sufficient remedy for a breach of any provisions of Section 4 (Usage) or 6(d) (Confidentiality) of this Agreement and that a party shall be entitled to seek specific performance, injunctive or other equitable relief as a remedy for any such breach. This Agreement constitutes the entire agreement of the parties, and supersedes any previous agreements between the parties, related to the subject matter hereof. No Client purchase order terms or other pre-printed Client terms will serve to modify the terms of this Agreement. If any term of the Agreement is held unenforceable, such term will be construed as nearly as possible to reflect the original intent of the parties and remaining terms will continue to be enforceable without modification. If any provision of this Agreement is held to be invalid, such invalidity shall not affect the enforceability of any other provision. IRI may assign or transfer this Agreement in its sole discretion. Client may not assign this Agreement, nor any rights or licenses granted by this Agreement, in whole or in part, without the prior written consent of IRI, which consent will not be unreasonably withheld. However, Client may assign this Agreement to a successor entity as a result of a merger, acquisition, reorganization, or other similar corporate transaction if such successor entity is not a competitor of IRI. Client must give IRI prior written notice of any such transaction and the successor entity must agree in writing assume all of Client’s obligations and liabilities under this Agreement.

EXHIBIT A
PRIVACY ADDENDUM

Capitalized terms used but not defined in this Privacy Addendum shall have the meanings set forth in the Cover Page. This Privacy Addendum addresses the obligations of the Client and IRI under the California Consumer Privacy Act as the same may be promulgated, supplemented, or amended from time to time and other United States federal, state, and local privacy laws, as applicable (“Privacy Laws”).

I) DEFINITIONS.  As used in this Privacy Addendum:

 

1. “Deidentified,” “Deidentification,” or “Deidentify” means information that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular consumer.
2. "Personal Information" means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with an individual consumer or household and does not include aggregated or Deidentified information.

 

II) IRI AND CLIENT WARRANTIES.

1. IRI Representations and Warranties.  IRI represents and warrants to Client that IRI: (1) is the owner of or has the applicable license to provide IRI Verified Segments to Sub-processors and/or Client; (2) collected and provided IRI Verified Segments in compliance with all applicable Privacy Laws, rules, and regulations; (3) only has access to and processes Deidentified data and has the proper terms and procedures in place with Sub-processors to ensure that data remains Deidentified to IRI; and, (4) will use, and will require any Sub-processors to use, commercially reasonable security procedures that are reasonably designed to maintain an industry-standard level of security, prevent unauthorized access to and/or disclosure of IRI Verified Segments and Delivered Segments.
2. Client Representation and Warranty.  Client represents and warrants to IRI that Client: (1) will process Delivered Segments in accordance with the Permissible Use, and will not, under any circumstances, collect, use, retain, access, share, transfer, or otherwise process Delivered Segments for any purpose not related to the Services described herein; (2) refrain from taking any action that would cause any transfers of Delivered Segments to qualify as “selling personal information” as that term is defined under the CCPA; (3) shall comply with all applicable Privacy Laws, rules, and regulations; (4) provides any and all required disclosures in connection with the use of the Delivered Segments; (5) has privacy disclosures and policies that are easily accessible to end users; and, (6) will use, and will require any Sub-processors to use, commercially reasonable security procedures that are reasonably designed to maintain an industry-standard level of security, prevent unauthorized access to and/or disclosure of Delivered Segments.

III) GENERAL.

1. Each party shall reasonably cooperate and assist the other with meeting privacy compliance obligations and responding to privacy-related inquiries; including, if applicable, coordinating compliance requirements with third party services, including but not limited to: audience marketplaces, on-boarders, supplemental demographic data providers, or Deidentification service providers (collectively “Sub-processors”).
2. The parties acknowledge and agree that IRI is only providing the Delivered Segments to the onboarder for identity resolution purposes for delivery to Media Activation Party, and IRI is not activating or optimizing the Delivered Segments for Client.
3. In the event of a conflict between the terms set forth in this Privacy Addendum and the Agreement, the terms of this Privacy Addendum shall control.