In addition to the Publisher Services Agreement, the following terms and conditions additionally apply to Connect.
- License Grant. Publisher hereby grants to PubMatic a non-exclusive, worldwide, sublicensable license during the Term to use, host, syndicate, publicly display, sell, market, create algorithms based on, and modify the Audience Data for its own behalf and/or on behalf of Publisher for the purposes of (a) using the Audience Data to create, deliver, analyze, model, plan, optimize, and report on advertising campaigns, audiences and segments for targeted private marketplace packages for PubMatic Customers; and (b) providing the PubMatic Products for Publisher’s benefit.
1.1 Required Consents. Publisher shall be solely responsible at no cost to PubMatic for procuring and maintaining during the Term all necessary and applicable rights, consents, licenses, and clearances with respect to the Audience Data as necessary for PubMatic and the PubMatic Customers to exercise the rights and licenses granted by Publisher herein.
1.2 Restrictions. PubMatic shall not make the Audience Data available to any third party in raw and an unmodified form. PubMatic shall implement administrative, physical and technical safeguards to protect the Audience Data from unauthorized access, loss or disclosure that are no less rigorous than accepted industry standards and using reasonable care. PubMatic shall notify Publisher promptly in the event PubMatic learns of any unauthorized access, loss or disclosure of any Audience Data, and will reasonably cooperate with Publisher in any proceeding against any third parties necessary to protect Publisher’s rights with respect to the Audience Data. PubMatic shall retain the right to discontinue offering any of the Audience Data at any time in the event that Audience Data violates the terms of this Agreement or does not generate any Data Revenue.
- Data Protection Addendum. To the extent applicable, the Connect Data Protection Addendum shall form part of this Agreement and its terms are hereby incorporated in the Agreement by reference.
- PUBLISHER oBligations. Publisher will perform its obligations under this Agreement, including with respect to the collection and provision of Audience Data as contemplated hereby, in compliance with all applicable laws, rules and regulations.
3.1 Publisher shall ensure that the Publisher Properties and each of the sources of Audience Data: (i) contain a privacy policy that clearly and conspicuously discloses the collection, provision and use (including, without limitation, the use contemplated by this Agreement) of Audience Data, including descriptions of data collection for interest-based advertising, as applicable, (ii) provide a conspicuous mechanism by which End Users may opt out of interest-based advertising, as applicable and/or required by law, rule, or regulation, and (iii) to the extent required by applicable law, rule or regulation, obtain, with respect to Publisher’s services, End Users’ prior and informed consent to the use, collection and sharing of the Audience Data as contemplated by this Agreement.
3.2 Publisher will not pass or make available to PubMatic as part of Audience Data: (i) Personal Directory Data or (ii) Sensitive Personal Data.
3.3 Publisher will not pass or make available to PubMatic, or will immediately inform PubMatic if it previously provided, any data relating to an End User in the event that Publisher knows that such End User has opted out of interest-based or cross-app advertising, the uses of Audience Data contemplated by this Agreement, or the services provided by Publisher.
- ADDITIONAL REPRESENTATIONS AND WARRANTIES. Publisher represents and warrants that (i) the Audience Data does not, and will not, infringe, violate, or misappropriate the Intellectual Property rights of any third party; (ii) it has all required consents described in Section 1.1; (iii) the Audience Data will meet the requirements of this Addendum (iv) it will comply with all applicable laws, rules, and regulations, including privacy laws and regulations, in its collection, storage, sharing and use of the Audience Data; and (v) the collection, provision and use of Audience Data as contemplated hereby do not, and will not, (a) violate the terms of any privacy policy or other disclosure made at the time of collection, or (b) violate the terms of service of any operating system or platform (including, without limitation, iOS or Android), web site, application or other source of Audience Data.
- Publisher indemnification Publisher agrees to indemnify, defend, and hold PubMatic and its directors, officers, shareholders, employees, affiliates, and agents harmless from and against any liabilities, damages, losses, or expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party that is based upon, arises out of, or relates to the alleged or actual breach of any of Publisher’s representations and warranties set forth Publisher herein, and the use by PubMatic or the PubMatic Customers of the Audience Data as contemplated in this Agreement; provided, however, that PubMatic: (i) promptly notifies Publisher in writing of the claim, except that any failure to provide this notice promptly only relieves Publisher of its responsibility pursuant to this Section to the extent its defense is materially prejudiced by the delay; (ii) grants Publisher sole control of the defense and/or settlement of the claim; provided Publisher uses legal counsel reasonably acceptable to PubMatic; and (iii) provides Publisher, at Publisher’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim. Publisher shall not settle any claim in a manner that adversely affects the rights of PubMatic without PubMatic’s prior written consent, which consent shall not be unreasonably withheld or delayed. PubMatic may participate in and observe the proceedings at its own cost and expense with legal counsel of its own choosing.
DEFINITIONS.
“Audience Data” means any data owned or licensed by Publisher that is delivered or otherwise made available to PubMatic pursuant to this Agreement.
“Connect Data Protection Addendum” means the data protection addendum located at https://pubmatic.com/legal/connect-data-protection-addendum/.
“Data Revenue” means gross revenue earned by Publisher for the data on sales of impressions via the PubMatic Products.
“End User” means a specific natural person who uses the Publisher Properties.
“Intellectual Property” includes trade secrets, copyrights, trademarks, patents, logos, service marks, inventions, technology, Confidential Information, and other proprietary materials.
“Personal Data” shall have the meaning of this term or any similar term (such as “personal information” or “personally identifiable information”) under the relevant applicable privacy or data protection laws, or where no such laws apply, shall mean any information that by itself or when combined with other information (such as name, address, telephone number, e-mail address, precise geo location, financial account number, and government-issued identification number) can be used to identify a specific natural person.
“Personal Directory Data” means calendar, address book, phone/text log, or photo/video file data (including any associated metadata), or similar data created by a user that is stored on or accessed through a device.
“Publisher Properties” means Publisher owned, operated and/or controlled web or mobile properties or other sources of data for Publisher.
“PubMatic Customer” means any PubMatic customer, publisher, demand partner, agency, or advertiser that receives Audience Data from PubMatic.
“PubMatic Products” means the online advertising services owned, operated, or provided by PubMatic through which Audience Data shall be utilized in accordance with the rights and licenses granted herein.
“Sensitive Personal Data” shall have the meaning relating to this term or any similar term (such as “sensitive personal information”) under relevant privacy or data protection laws, or where no such laws apply, shall mean, with respect to a specific natural person, medical or health information (including information about health conditions or treatments), financial information (including financial account information and number), sexual orientation, social security number or other government-issued identifiers, and personal information of children protected under any applicable child protection laws (such as the personal information defined under the United States Children’s Online Privacy Protection Act of 1998 (“COPPA”).
“Term” means the Initial Term and any Renewal Terms.
“Wind-Down Period” is defined as a 90 day period after the termination date of this Agreement during which Publisher will continue to provide Audience Data to PubMatic and the PubMatic Customers, at PubMatic’s option.