Merkury Terms of Use

The use of the Merkury platform ("Merkury") by or on behalf of the entity benefiting from Merkury Functionality (as defined below) is conditioned on acceptance of these terms of use ("Terms of Use"). The General terms on this page shall apply to all uses of Merkury. The other sections on this page (e.g., Identity, Tag, Data, etc.) shall only apply to the extent that such Merkury Functionality are utilized pursuant to an Order. These Terms of Use shall apply solely to the use of Merkury Functionality in the United States. Please consult with your dentsu contact for any terms governing use of any Merkury functionality outside of the United States.

  1. General

    1. Definitions

      1. “Ad Delivery Platform” means a media company, publisher, platform, network, or other party that sells or attempts to sell ad inventory or facilitates delivery of targeted serving of advertisements (e.g., consumer data platforms (CDP), data management platforms (DMP), demand-side platforms (DSP), sell-side (or supply-side) platforms (SSP)).
      2. “Client” means the entity for whose benefit Merkury platform is deployed.
      3. “Client Data” means any data Client owns or licenses independent of the Merkury platform or Merkury Data, and provides for use within Merkury.  For clarity, nothing herein or in an agreement between Client and Merkle (or any affiliates of Merkle or Client) shall cause aggregated or otherwise anonymized metadata produced by Merkury (e.g., audience sizes) to be considered Client Data or such other similar term provided in an agreement between Client and Merkle (or any affiliates of Merkle or Client).
      4. “Client Audience Data” means Client Data relating to audiences which Client directly or indirectly provides for use within Merkury.
      5. “Client Inputs” means any data, materials, software, hardware and/or instructions provided by or on behalf of Client or Client’s affiliate(s)for use in Merkury.
      6. “Cloud Hosting” means the use of a third-party to provide infrastructure supporting computing and storage resources in a utility model.
        Examples of third-party Cloud Hosting providers include, without limitation, Amazon Web Services (AWS), Google Cloud Platform (GCP), and Microsoft’s cloud-based offering (Azure).
      7. “Confidential Information” means any information of either party, and/or their affiliates, which is, or should be reasonably understood to be confidential or proprietary to the disclosing party. Confidential Information shall not include information which:
        1. is known to the receiving party prior to the disclosure by the disclosing party;
        2. has become publicly known through no breach of these Terms of Use;
        3. was received by the receiving party from a third party not known to be under an obligation of confidentiality;
        4. was independently developed by the receiving party without use of the disclosing party’s Confidential Information; or
        5. is used and disclosed in connection with any generative artificial intelligence tool in furtherance of use of Merkury.
      8. “CPM” means cost per thousand.
      9. “Data Onboarding Provider” means a third-party engaged to deliver audiences to Ad Delivery Platform(s).
      10. “Data Derivatives” means the creation of data derived from or informed by Merkury Data, including, without limitation, audience lists, segment or profile codes, and model scores. Data Derivatives do not include instructions used to create such Data Derivatives, provided such instructions omit Merkury Data.
      11. “DataSource Data” means data from Merkle’s proprietary United States consumer data product, DataSource™.
      12. “Email Service Provider” (ESP) mean a third-party engaged to deliver emails to consumers (individuals or households) or businesses.
      13. “Feedback” means any and all suggestions, comments and feedback provided to Merkle by Client or Client’s affiliates regarding the functionality, features, and other characteristics of Merkury, or of the software, documentation, or other materials provided or made available to Client in connection with Merkury.
      14. “Improved Audience” means a Targetable Audience which has been constructed from or informed by Merkury Data, alone or in conjunction with Client Audience Data.
      15. “Merkle” means the dentsu entity that provides Merkury.
      16. “Merkury Data” means any data which is licensed by Merkle in conjunction with Merkury Functionality, including Resolution Data, third-party data available in Merkury, or expressly licensed by Merkle.
      17. “Merkury Functionality” means any features, functions, behaviors, or outputs of component of Merkury.
      18. “Merkury ID” or “MID” means a person-based identifier generated by the Merkury platform.
      19. “Order” means an agreement executed by both parties which details the provision and/or use of Merkury Functionality.
      20. “Personal Data” (or “Personal Information”) means any information relating to an identified or identifiable individual 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.
      21. “Personal Health Information” has the same meaning as “Protected Health Information” in under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and provisions in state privacy laws that pertain to health data or sensitive Personal Data that describe a medical condition.
      22. “Pseudonymous Personal Data” means Personal Data that has been processed in a manner that renders the Personal Data incapable of identifying a particular consumer or household without the use of additional information.
      23. “Resolution Data” means any data provided by Merkle as a party of identity resolution.
      24. “Rules” means applicable laws, rules, regulations, and industry guidelines and self-regulatory codes of conduct, including but not limited to the then-current Digital Advertising Alliance (the “DAA”) Self-Regulatory Principles (available at https://digitaladvertisingalliance.org/principles/), and guidelines of Association of National Advertisers (https://www.ana.net).
      25. “Sensitive Data” shall be as defined in applicable law and may include items such as: (a) Personal Data related to a data subject under the age of sixteen (16); (b) person 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 name with associated 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 and any required PIN or access code; (f) medical or health information pertaining to an identified individual; (g) Personal Data containing payroll or financial information with associated employee identifiers; (h) data regarding sexual orientation; (i) data regarding religious affiliation; or (j) precise location data (other than consumer residential address).
      26. “Targetable Audience” means an instance of Merkury Data reflecting an audience developed and/or delivered in conjunction with Merkury. Targetable Audiences will not be considered works for hire.
      27. “Territory” means the United States of America (including its possessions).
      28. “Unimproved Audience” means an audience developed solely of Client Audience Data with no Merkury Data applied (such as to model, segment Client Audience Data, or otherwise to expand or constrain audience beyond Client Audience Data.)

    2. Ownership; Intellectual Property

      1. Other than the use rights agreed to in an Order, no right, title, or interest is transferred to Client in Merkury, any Merkury component, Merkury Functionality, Merkury Data, Improved Audiences, or improvements to or derivatives from same.
        1. Merkury, Merkury Data, Merkury Functionality, and Improved Audiences are expressly excluded from any definition of deliverables or similar and will not be considered works for hire.
      2. Client shall retain all right, title, and interest in and to any and all Client Inputs to Merkury platform, including all enhancements, modifications, improvements, and derivative works thereto developed independent of Merkury and Merkury Data. Client conveys to Merkle a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to:
        1. collect usage and operations data regarding use of Merkury to improve products and services, provided such usage details does not include or is sufficiently aggregated to not expose consumer-level information; and
        2. utilize any and all comments, suggestions, and other feedback from Client, its affiliates, or their service providers regarding Merkury.
      3. Client shall have a perpetual license to retain and use (subject to the bounds of the applicable Order and these Terms of Use) the Merkury ID assigned to a consumer record provided by or on behalf of Client, where such consumer record is owned (or licensed) by Client independent of (a) Merkury and (b) Services provided by Agency or its affiliates.

    3. Confidentiality

      1. Each party will have access to Confidential Information of the other. For the purposes of these Terms of Use, “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 of Use.

    4. Responsibilities

      1. Mutual Responsibilities
        1. Each party will provide necessary notices and opt-out opportunities to consumers.
        2. Each party will, upon other party’s reasonable request, cooperate in good faith to update any terms to address changes in Rules.
        3. Each party will reasonably support the other party in fulfilling its obligations under Rules, particularly with respect to addressing consumer elections regarding data use and privacy.
        4. Each party agrees to implement and maintain industry standard physical, technical, and administrative security measures designed to prevent unauthorized access, misuse, alteration, or disclosure of the other party’s data, systems, materials, or other confidential information (“Security Measures”).
        5. Each party (as the “Breached Party”) shall notify the other party within seventy-two (72) hours of becoming aware of a confirmed unauthorized access, use, disclosure, loss, or processing of the other party’s data, systems, materials, or other confidential information (“Security Incident”). The Breached Party shall, immediately and at its own expense, investigate such Security Incident and shall take all measures reasonably necessary to investigate and remediate such Security Incident. During such investigation, Breached Party shall, at its own cost, provide periodic updates to other party regarding its investigation, and shall, upon completion of such investigation provide the other party with a report (which shall be Breached Party’s confidential information) detailing how the Security Incident occurred, what confidential information (if any) was disclosed during the Security Incident, and details regarding Breached Party’s remediation activities.
          In the event of a confirmed Security Incident, Breached Party shall cooperate with the other party and comply with any reasonable requests of the other party in connection with such Security Incident which may include:
          1. engaging an independent auditor to audit its environment and the security controls therein and provide the results thereof to the other party;
          2. taking reasonable steps, consistent with industry best practices and standards, to mitigate and correct the effects of any actual Security Incident;
          3. at its own cost, provide reasonable assistance to the other party in responding to and mitigating the effects of such Security Incident; and
          4. upon written request by other party, ceasing or suspending use of the other party’s Confidential Information. Breached Party shall not issue any public communications regarding a Security Incident without the other party’s prior written approval, provided that the foregoing shall not limit or restrict Breached Party from its obligations under applicable law, and from communicating with affiliates, legal authorities, auditors, insurance providers, or legal advisors.
      2. Client Responsibilities
        1. Client will ensure that any Client Inputs conform to Merkury specifications. In the event that any Client Input does not conform with Merkury specifications, Client will be responsible for any necessary corrective actions.
        2. Client has confirmed and will ensure that all Client Inputs, when used as permitted by these Merkury Terms of Use, applicable Order, and any other applicable agreement between the parties will not infringe or misappropriate any intellectual property; violate any moral, literary, privacy, publicity or other right of any individual or entity; or cause the receiving party to be in violation of applicable law.
        3. Client will, and will require each applicable third-party operating on Client's behalf to, apply applicable tags as necessary to enable applicable Merkury Functionality.
        4. Client will, and will ensure Client affiliates and all applicable third-parties, adhere to all applicable terms and conditions of any Ad Delivery Platform used in connection with the Merkury Functionality or data provided by Merkle.
        5. Client will not, and will ensure all applicable third-parties do not, request or cause Merkury to receive or process data concerning individuals residing beyond the Territory.  The Merkury platform shall not be used in support of marketing of goods or services, or the monitoring of behavior, to the extent such activity occurs outside of Territory.
        6. To the extent that Merkle notifies Client to discontinue use, delete, update or replace Merkury Data, Client will immediately discontinue use of such data , and will itself, and will ensure all Client's service providers and other recipients of the Merkury Data, promptly (not to exceed the earlier of: (1) timing required by applicable law; or (2) thirty (30) calendar days) and permanently delete, update, or replace such data in its, its affiliates, or its service providers’ care, custody, or control. Merkle will attempt to provide written notice as far in advance of such event as is reasonably possible; however, Client acknowledges that Merkle may not be entitled to receive advance notice of such events from its third-party suppliers or legal and/or regulatory processes.
        7. Client will provide and ensure Client affiliates and/or service providers provide Merkle with access to systems and reports reasonably necessary to conduct, monitor, and measure applicable Merkury Functionality.
          1. Audience Usage Data. In the case of media activation against Improved Audiences, Client will ensure Audience Usage Data is provided to Merkle within ten (10) business days following conclusion of each month where ad delivery occurs to Improved Audiences. “Audience Usage Data” includes: (1) applicable Client brand(s) and/or affiliates; (2) channel or media; (3) marketing platform vendor name; (4) unique identifier and/or descriptive name of campaign; (5) dates of usage period; (6) platform specific information, such as placement name/identifier, ad set name identifier and Ad Delivery Platform audience identifier; (7) Targetable Audience(s) used; and (8) related usage volumetrics for usage reporting period, such as impressions served, ad clicks, etc.
          2. Merkle may retain details regarding use of the Merkury Functionality, such as Audience Usage Data, for as long as use of Merkury is authorized under any applicable Order or longer as reasonably necessary to assess fees and fulfill Merkle obligations to its suppliers.
      3. Merkle Responsibilities
        1. Merkle will ensure Merkury platform functions as designed.

    5. Representations and Warranties

      1. Mutual Representations and Warranties
        Each party represents and warrants to the other that:
        1. it has the necessary rights to all data and materials it provides to the other party for use within Merkury and no additional permissions are required from third parties for use of such data hereunder;
        2. all data and materials it provides to the other party pursuant to the applicable Order, and the other party’s use of such data and materials are as permitted by these Terms of Use; and
        3. it will comply with its privacy policy and all Rules.
      2. Client Representations and Warranties
        Client additionally represents and warrants that:
        1. it will not, and will ensure its affiliates and all service providers do not:
          1. use Merkury platform or Merkury Functionality for the benefit any party other than Client (except as expressly provided in the applicable Order);
          2. use or attempt to use Merkury or any Merkury Functionality for purposes of provision of consumer credit, insurance underwriting, employment decisions, tenant screening, or for any other purpose covered by the federal Fair Credit Reporting Act (15 U.S.C Sec. 1681 et seq.);
          3. copy or otherwise reproduce, retransmit, republish or transfer for any purpose any Resolution Data except as necessary to comply with applicable law or as required to comply with Client’s documented 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;
          4. use Pseudonymous Personal Data, including Targetable Audiences, to re-identify or otherwise relate such data to directly identifiable Personal Data;
          5. use Targetable Audiences developed for use on a given Ad Delivery Platform for purposes of targeting audiences on a different Ad Delivery Platform without Merkle’s prior written approval; and
          6. will not transmit Sensitive Data to Merkle unless expressly permitted to do so in writing (email acceptable)
        2. to the extent the Client provides third-parties with access to Merkury, Merkury Functionality, Merkury Data, or Improved Audiences, Client:
          1. will ensure such third-parties are contractually bound to terms no less restrictive than those expressed herein, within the applicable Order, and any other applicable agreement between the parties; and
          2. accepts responsibility for the acts and omissions of such third-parties as if such actions were its own.
      3. Merkle Representations and Warranties
        Merkle additionally represents and warrants that:
        1. The Merkury Functionality are provided on an “as is”, “as available” basis. Any use or reliance upon the Merkury platform or Merkury Functionality by Client shall be at its own risk.
        2. OTHER THAN AS PROVIDED HEREIN OR IN APPLICABLE ORDER EXPRESSLY RELATING TO MERKURY PLATFORM, MERKURY FUNCTIONALITY, OR RESOLUTION DATA, MERKLE DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, HEREUNDER WITH RESPECT TO THE MERKURY PLATFORM OR RESULTS THEREOF, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, OR RELIABILITY OF MERKURY PLATFORM OR THE RESULTS THEREOF.

    6. Indemnification

      1. Indemnification of Merkle
        CLIENT WILL DEFEND, INDEMNIFY AND HOLD HARMLESS MERKLE AND ITS AFFILIATES, INCLUDING 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 UNAUTHORIZED USE OF MERKURY OR MERKURY DATA.
      2. 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.

    7. Effect of Expiration or Termination

      Upon expiration or termination of each applicable Order:

      1. Excluding use of Client Inputs, Client will itself, and will ensure its affiliates, and it and their respective third-parties:
        1. immediately cease all use of Merkury, its components, and Data Derivatives;
        2. promptly remove from its files, computers, and systems, all copies of Improved Audiences, Merkury Data, and Data Derivatives thereof (excluding backup copies and copies made pursuant to Client’s written data backup policies or to comply with applicable law, provided that such copies are not used other than for backup and such copies remain subject to applicable confidentiality and security terms until deletion);and
      2. promptly remove all instances of the Tag from Website(s) and any applicable email(s)
      3. Merkle will discontinue access to Merkury for Client and discontinue use of Client Data received and Improved Audiences developed in conjunction with the applicable Order.
      4. To the extent Ad Delivery Platforms contracted by Merkle are engaged in conjunction with the Merkury Functionality, Merkle will promptly direct such Ad Delivery Platforms to permanently deactivate and delete or disable all MIDs developed in conjunction with Merkury.
      5. Except as otherwise permitted herein, an applicable Order, or other agreement between the parties, Merkle will promptly delete applicable Client Inputs from Merkury, except as reasonably necessary to comply with:
        1. Rules;
        2. contractual obligations imposed by Merkle’s suppliers; and
        3. Merkle's established disaster recovery policy, provided that any such retained data are not restored for operational use and remain subject to applicable confidentiality and security terms until deletion.
      6. Client will pay:
        1. the remaining balance of any fixed fees, including without limitation, any annual license fees;
        2. fees for use of Merkury through the end date of the applicable Merkury license(s); and
        3. any non-cancelable fees, costs, or expenses incurred or otherwise committed through the effective date of termination.

    8. General

      1. In the event of conflict between these Terms of Use, an applicable Order, and/or any other agreement between the parties, these Terms of Use shall prevail with respect to Merkury and Merkury Functionality.
      2. Merkle may utilize affiliates and/or engage third-party service providers in its performance, provided Merkle remains responsible for the acts or omissions of such third-parties.
      3. Any adjustments to the functionality, purpose, or integrity of the Merkury Platform shall require express written approval from Merkle.
      4. Fees for use of Merkury platform components shall reflect the rates prevailing at time.
      5. To the extent that Merkle notifies Client of a need to remove certain data, Client shall immediately cease use of such data and promptly purge such data as directed by Merkle. Merkle will attempt to provide written notice as far in advance of such event as is reasonably possible under the circumstances; however, Client acknowledges that Merkle is not contractually entitled to receive advance notice of such events from its third-party data suppliers or legal and/or regulatory processes.
      6. Merkle reserves the right to suspend access to or rights within Merkury, and Merkury Data if:
        1. Merkle reasonably believes such access would violate the rights of Merkle or other third-parties; or
        2. reasonably necessary for Merkle or Merkle affiliates to comply with Rules or its contractual requirements.
      7. In no event shall Merkle sell, use, retain, collect, or disclose Client Data, outside of the business relationship between Client and Merkle, for any purpose other than those described herein or in the Order.
      8. From time to time, at the reasonable prior written request of Merkle, Client shall provide Merkle with information reasonably requested by Merkle and, to the extent requested by Merkle, a certification to attest that Client is in compliance with the applicable Order and these Terms of Use.
      9. To comply with any changes to Rules, Merkle may withdraw, decline to provide, or change the terms related to the impacted Merkury components, Merkury Functionality, or Merkury Data upon reasonable notice to Client. If such change materially negatively impacts Client’s use of Merkury, Client may terminate the use of Merkury from the impacted Order.
      10. 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 Rules.
      11. Client hereby licenses Feedback to Merkle on a worldwide, perpetual, irrevocable, non-exclusive, freely-transferable, fully paid, and royalty-free basis, for Merkle and any Merkle-designee to use and exploit in any manner and for any purpose.
      12. Any provisions in any other agreements between the parties relating to transparency, prohibition of mark up on third party costs, early payment or other vendor discounts, media audit, rebates and incentives, non transparent services, vendor selection or third party contracts shall not apply to Merkury.
      13. Change in Rules
        To comply with any changes to Rules, or in the event Client’s use of any Merkury Functionality is the subject of an adverse consumer or regulatory response, Merkle may withdraw, decline to provide, or change the terms related to Merkury upon reasonable notice to Client.
      14. 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 Rules.
      15. Survival
        Provisions concerning indemnification, warranty, and any other provisions of these Terms of Use that should expressly survive, shall survive termination or expiration of the applicable Order(s).
      16. Assignment
        Neither party may assign these Terms of Use without the written consent of the other party; provided, however, a party may assign these Terms of Use 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 of Use relate if such successor or affiliate agrees in writing to be bound by all of the terms and provisions of these Terms of Use. Any purported assignment in contravention of this section shall be null and void.
      17. Governing Terms
        These Terms of Use are governed by and construed in accordance with the laws of the 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 of Use, except that in actions seeking to enforce any order or any judgment of such federal or state courts, such personal jurisdiction shall be nonexclusive.
      18. Amend Terms
        Merkle reserve the right to amend these Terms of Use at any time. Client’s continued use of or access to Merkury Functionality after any such amendment will constitute its binding agreement to these Terms of Use as amended.
      19. Suspension
        In the event of any material changes to applicable law or industry self-regulatory guidelines, either party may suspend or terminate the impacted part of the Services or deliverables upon reasonable notice to the other party, or the parties may change the terms related to the impacted part of the Services or deliverables upon mutual written agreement.
      20. Generative AI Products
        Unless otherwise expressly agreed in writing by the parties, Client shall not use any Merkury Data in or in conjunction with generative artificial intelligence (“Generative AI”) tools or products.

  2. Identity

    Background: Merkury Identity Resolution reflects the processing data and relatable event signals to match and associate such inputs with Merkury’s identity reference base and Reference Data. In addition to the General terms, the following terms of use apply to any Order involving Merkury’s Identity Resolution functionality.

    1. Client may at its discretion, provide Client Data in order for Merkle to perform Identity Resolution processing, including:
      1. receiving Client Data provided in accordance with applicable platform specifications;
      2. performing data standardization, hygiene, and/or correction;
      3. evaluating applicable data and match to Reference Data;
      4. assigning and maintaining pseudonymous identifier;
      5. analyzing Client Data and/or processing results; and
      6. returning mutually agreed pseudonymous identifiers to Client.
    2. Client understands that certain Identity Resolution features may require Client’s prior acceptance of applicable terms (e.g., Processing Acknowledgement Form for US Postal Service NCOA), and that Merkle will withhold such processing until the requisite terms are executed.
    3. Client Responsibilities
      1. Client will only use Resolution Data in accordance with the terms and conditions outlined in this Terms of Use, the Order, and not for any other use or purpose.
      2. Client represents and warrants that (i) it is not a reseller or distributor of data or identity resolution services; (ii) that it will not, and will not permit any third-party to, use or attempt to use the Resolution Data for consumer credit purposes, consumer insurance underwriting, employment purposes, tenant screening purposes, or for any other purpose(s) covered by the federal Fair Credit Reporting Act (15 U.S.C Sec. 1681 et seq.) or similar statute, rules, or regulations; (iii) it will abide by such legislation, rules, regulations as may by enacted or adopted after the date of the applicable Order, by any federal, state or local government body; and (iv) will not copy or otherwise reproduce, retransmit, republish or transfer for any purpose any Resolution 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. To the extent that Merkle notifies Client of a need to remove certain Resolution Data, Client shall immediately cease use of such Resolution Data and promptly purge such Resolution Data as directed by Merkle. Merkle will attempt to provide written notice as far in advance of such event as is reasonably possible under the circumstances; however, Client acknowledges that Merkle is not contractually entitled to receive advance notice of such events from its third-party data suppliers or legal and/or regulatory processes.
      4. Client’s access to Resolution Data and provision of Identity Resolution Services may be suspended at Merkle’s sole discretion if it reasonably believes Client’s use of the Resolution Data or Identity Resolution Services is not in accordance with this Terms of Use.
      5. From time to time, at the reasonable prior written request of Merkle, Client shall provide Merkle with reasonably necessary information and a certification to demonstrate that Client is in compliance with this Terms of Use.
    4. Merkury ID Usage Restrictions
      1. Client will be granted a non-exclusive, non-transferable, non-sublicensable, and limited license to use the Merkury ID provided by Merkle solely for the purposes outlined in the applicable Order and subject to the restrictions set forth in these Terms of Use.
      2. Client acknowledges and agrees that the Merkury ID is proprietary data owned by Merkle, and Client shall not resell, sublicense, or otherwise provide or disclose the consumer ID to any third party for any purpose other than as permitted under the applicable Order.
      3. Client shall not use the Merkury ID for purposes of creating, enhancing, or maintaining any consumer database, directory, or similar listing, or for any purpose not expressly authorized by Merkle in writing.

  3. Tag

    Background: The Merkury Tag processes visitors and their activities in an effort to associate otherwise anonymous interactions with profiles of recognized consumer and households. In addition to General terms, the following terms of use apply to any Order involving Merkury’s Tag functionality.

    1. Merkle will supply code for Client to implement (a) Merkle’s site tags and/or (b) Merkle’s server to server integration ( as discussed herein, each a "Tag").
    2. Client will implement Tag(s) according to Merkle’s specifications, and only on the agreed Client website(s) (the “Websites”) and in accordance with the use stated in an Order.
    3. Client will administer the Tag(s) on Websites or consent management platforms or similar technology to ensure all data collected by the Tag(s) concerning site visitors is permitted for the agreed uses.
    4. Client will configure its implementation of the Tag(s) to not initiate Tag fire events where:
      1. the site visitor is known to have opted out of applicable identity resolution or tracking and
      2. where required by Rules.
    5. Client will configure its implementation of the Tag to pass mutually agreed data to Merkle.
      1. Client authorizes use of logs resulting from Tag fire events for purposes of evaluating the identity of visitors, and processing as necessary to perform the agreed services.
      2. Client will not expose Personal Health Information or Sensitive Personal Data in conjunction with a Tag fire event.
    6. Client accepts the following with respect to the Tag:
      1. Client is solely responsible for provision and maintenance of any and all disclosures required by Rules.
      2. Client acknowledges that third-party data may be used to identify visitors or obtain information about such visitors.
    7. To the extent Client implements and invokes the Tag, Client grants Merkle the right and license to:
      1. accept data collected as part of the tag fire event and evaluate for site visitor recognition processes;
      2. match visitors exposed in Tag fire events and related logs to Resolution Data and/or Merkury Data;
      3. assign pseudonymized record identifiers;
      4. perform analysis describing the characteristics of visitors identified by Merkury Functionality;
      5. develop audiences; and
      6. utilize Tag fire events, logs, and developed audiences as input to other Merkury Functionality (to the extent applicable to an Order).
    8. Client acknowledges that Merkle maintains a proprietary dataset containing linkages of device and similar identifiers to email hashes (“Linkage Dataset”). Client agrees that
      1. log detail generated by Tags (such as date of hashed email addresses, IP address, date of email send , click, open, conversion, etc.) are the non-exclusive property of both Client and Merkle;
      2. Merkle may retain such Tag log data in, and client has no right or license to, the Linkage Dataset.
    9. To the extent Client provides directly identifying Personal Data or Pseudonymous Personal Data for matching visitors to Client Data, Client agrees that the Identity Resolution terms apply.
    10. Except as expressly approved in writing by both Client and Merkle, Client must not submit and Merkle will not collect nor store the following types of Client data in the Merkury Tag:
      1. financial account numbers or access codes (e.g., bank account or credit card numbers or PINs),
      2. government identification numbers (e.g., social security or driver’s license numbers),
      3. Protected Health Information or other sensitive individual health information as defined in applicable Rules, or
      4. personally identifying information about children under sixteen (16).
    11. Digital Consumer Recognition (DCR): Client may, at its discretion, execute Merkury Tags in support of Merkle’s DCR processing.  Client grants Merkle the right and license to use such Client Data pursuant to an Order, including, without limitation:
      1. Accept data collected as part of the tag fire event and evaluate for consumer recognition processes;
      2. Assign pseudonymized record identifiers;
      3. Onboard audiences formed from tag fire events for creation and delivery of Targetable Audiences, including via sublicense to the applicable Data Onboarding Provider(s); 
      4. Perform analysis describing the characteristics of audiences formed from tag fire events; and
      5. As necessary to perform the Merkury Services, create and deliver Targetable Audiences to Ad Delivery Platform(s).
    12. Merkury ID Usage Restrictions
      1. Client will be granted a non-exclusive, non-transferable, non-sublicensable, and limited license to use the Merkury ID provided by Merkle solely for the purposes outlined in the applicable Order and subject to the restrictions set forth in these Terms of Use.
      2. Client acknowledges and agrees that the Merkury ID is proprietary data owned by Merkle, and Client shall not resell, sublicense, or otherwise provide or disclose the consumer ID to any third party for any purpose other than as permitted under the applicable Order.
      3. Client shall not use the Merkury ID for purposes of creating, enhancing, or maintaining any consumer database, directory, or similar listing, or for any purpose not expressly authorized by Merkle in writing.

  4. Data

    Background: Merkury Data functionality spans Merkle's provision of proprietary and/or branded third-party data, including list rentals, data appends, reverse appends, file enhancement, computer services, or analytical services (collectively, “Data Services”) in the applicable Territory pursuant to an applicable Order. These Data terms remain in effect for so long as Merkury Data is in the care, custody, or control of Client or any third party operating on Client’s behalf. In addition to General terms and the terms of this Data section, to the extent Client provides directly identifying Personal Data or Pseudonymous Personal Data (such as to append Merkury Data to Client data), Client agrees that the Identity Resolution terms apply.

    1. Definitions

      1. “List” means a collection of consumer, household, or business records supplied from Merkury Data.
      2. “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.
      3. “Specialized Data” means any Merkury Data other than DataSource Data or Premium Z4 Data.
      4. “Third-Party Processor” means any third-party entity engaged by Client which will receive Merkury Data to perform information processing services in conjunction with the Data Services.

    2. Data Restrictions

      1. Resale Prohibition
        Client will not resell, sublicense, or otherwise provide or disclose any Merkury 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 Merkury Data except as necessary to comply with Rules 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.
      2. Merkury Data - Manner of Use 
        1. Client will use the Merkury Data in accordance with all Rules and in a manner which gives due consideration to matters concerning privacy, confidentiality, and security.
        2. Client will use the Merkury Data only for its own marketing purposes and only as specifically provided in an applicable Order.
        3. Except as permitted in an applicable Order:
          1. the Merkury Data may not be merged or incorporated with any other file;
          2. none of the Merkury 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;
          3. Client shall not tamper with, repair, decompile, disassemble, decode, create derivatives of, or reverse engineer, any of the Merkury 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
          4. the Merkury 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.
        4. To the extent that Merkle notifies Client of a need to remove certain Merkury 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 Merkury Data), Client shall immediately cease use of such Merkury Data and promptly take action (e.g., delete) as directed by Merkle. Client’s access to Merkury Data and provision of Data Services may be suspended at Merkle’s sole discretion if it reasonable believes that Client’s use of the Merkury Data or Data Services is not in accordance with these Terms of Use.
        5. Use of Premium Z4 Data
          The following provisions apply solely to the extent Merkle provides Premium Z4 Data to Client:
          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.
          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. 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 Rules.
          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.
          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.
          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.
        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.
        7. Pseudonymous Audience Use
          Client shall be limited to using Improved Audiences only for the duration of the campaign for which such audience was delivered, and not to exceed either one hundred twenty (120) days following delivery or the conclusion of the applicable Order governing such Improved Audience.
      3. Mutual Data Obligations
        Both Client and Merkle accept the following responsibilities:
        1. Each party shall provide the other party with all reasonably requested assistance and cooperation to enable the other party’s compliance with Rules.
        2. Each party shall comply with Rules in the performance of their obligations hereunder.
      4. Data Overlay/List Enhancement Use 
        Unless expressly specified otherwise in the applicable Order, in no event shall Merkury 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 Rules. Client represents and warrants that any Client list to which Merkury 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.
      5. 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 (a) such List members directly communicated Client (such as responding to a Client solicitation) and (b) Client does not refer to the original List, including, without limitation, whether the member was included in a List or the selection criteria applied in generating such a List.
      6. Append Use 
        Client shall be limited to using Merkury Data appended to Client Data to the lesser of the duration expressed in the applicable Order and one (1) year after delivery of such Merkury Data.
      7. 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 Merkury 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.
      8. Location of Data 
        Except as expressly authorized in an applicable Order, Client will not transfer to or access/use any Merkury Data from a location outside of the United States.
      9. 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 Merkury Data by Client. If Merkle is contractually obligated to provide any third party with records relating to Client’s use of Merkury Data, then upon Merkle’s request, Client will provide access to such records, which shall be deemed to be Client’s Confidential Information.
      10. Financial, Pricing, and Credit Laws 
        1. Each party hereby represents and warrants that it will not:
          1. merge the Merkury 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;
          3. use the Merkury Data to determine or inform pricing for products or services to individuals in violation of applicable laws, regulations, ordinances, or rules. Merkury 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 Merkury Data in a manner that would render Merkury 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 Merkury 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) violate pricing discrimination or similar laws, regulations, ordinances or rules.
        2. Merkle represents and warrants that Merkle is neither a “consumer reporting agency” nor maintains a consumer reporting database as defined by the FCRA.
        3. Client acknowledges and agrees that Merkle does not permit Client or any other entity to use Merkury Data or other information provided by Merkle in a manner that causes such Merkury 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.
      11. 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.
      12. Survival of Data Restrictions 
        This Section B (Data Restrictions) shall survive as long as Merkury Data is in the custody and/or control of Client.
    3. Warranties and Indemnification 
      1. 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.
      2. Data Disclaimers 
        1. OTHER THAN AS PROVIDED HEREIN, MERKLE DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF MERKURY 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 MERKURY DATA. MERKLE DOES NOT WARRANT THAT THE DATA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
        2. THE PARTIES AGREE THAT SPECIALIZED DATA IS PROVIDED BY MERKLE “AS IS” AND WITHOUT ANY WARRANTIES.
        3. MERKLE WILL NOT PROVIDE CLIENT ANY MERKURY DATA WHICH MERKLE KNOWS HAS NOT BEEN COLLECTED IN COMPLIANCE WITH APPLICABLE LAW. IF MERKLE REASONABLY BELIEVES THAT ANY MERKURY DATA WAS NOT COLLECTED IN COMPLIANCE WITH APPLICABLE LAW, MERKLE WILL DISCUSS THIS BELIEF WITH CLIENT AND RECEIVE CLIENT’S WRITTEN APPROVAL FOR SUCH MERKURY DATA LICENSING BEFORE PROVIDING SUCH MERKURY DATA TO CLIENT.
        4. 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. Miscellaneous
        1. Data not a Deliverable.  Except to the extent expressly provided in an applicable Order,
          1. Merkury Data is not a deliverable or work for hire;
          2. no ownership of Merkury Data or Data Derivatives conveyed; and
          3. rights to Merkury Data and Data Derivatives endure only for the term of the applicable Order.
      4. Special Notice Regarding Telemarketing Activities
        Client acknowledges that certain Rules 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 Rules, Merkle makes no representation or warranty that the names or telephone numbers of such individuals have been identified on or deleted from the Merkury Data.

  5. Clean Room

    Background: The Merkury Clean Room receives and retains pseudonymized, anonymized, and summarized/aggregated data for analysis, modeling, reporting, and audience development in a manner designed to maintain the anonymity of the Personal Data. In addition to General terms, the following terms of use apply to any Order involving Merkury’s Clean Room functionality.

    1. Clean Room environment shall be hosted within a Merkle-licensed Cloud Hosting environment and managed through Merkle-licensed data management software.
    2. Where mutually agreed, Merkle may provision credentials for specified individuals to access the Clean Room (each a “Clean Room Login”).
    3. Client will ensure access to Clean Room is limited to the individuals expressly identified in the Clean Room Login assignment by Merkle, and will safeguard against:
      1. sharing of Clean Room Login credentials; and
      2. concurrent use of Clean Room Login credentials across multiple devices.
    4. Client is liable and responsible for any action taken or inaction with a Clean Room Login provided to Client or a Client authorized user.
    5. Client will not, and will ensure its affiliates and service providers do not, defeat or otherwise circumvent the pseudonymization of data in the Clean Room.
    6. Client acknowledges that Clean Room relies on the Identity Resolution functionality (such as to assign pseudonymous record identifiers) and agrees that the Identity Resolution terms apply
    7. Use of Third-Party Licensed Data
      1. Client shall not introduce or process any data within the Clean Room that Client is not duly authorized or licensed to use for the intended purpose. This includes, but is not limited to, data licensed from third parties, such as ad serving logs or other data sources.
      2. Prior to introducing any third-party licensed data into the Clean Room, Client must provide Merkle with written confirmation that Client has obtained all necessary rights, licenses, and permissions from the applicable third-party data provider(s) to use such data within the Clean Room for the intended purpose(s).
      3. Client shall indemnify, defend, and hold harmless Merkle and its affiliates, officers, directors, employees, and agents from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees) arising from or related to Client's use of any third-party licensed data within the Clean Room without proper authorization or license from the applicable third-party data provider(s).
      4. Merkle reserves the right to suspend or terminate Client's access to the Clean Room if Merkle reasonably believes that Client has introduced or processed any third-party licensed data without proper authorization or license.

  6. Media Suite

    Background:The Merkury Media Suite includes, without limitation: Audience Builder and Explorer, Audience Delivery, Contextual Intelligence, Activate Bidder, and Planner. These component offerings enable authorized users to conceptualize, plan, deliver, and target audiences. In addition to General terms, the following terms of use apply to any Order involving Merkury’s Media Suite functionality.

    1. Audience Builder and Explorer

      1. Audience Builder and Explorer enables authorized users to load Client Audience Data, construct audiences using Client Inputs and/or Merkury Data, and develop insights regarding conceptual audiences via an intuitive user interface (“Explorer”).
      2. To the extent Client provides Personal Data to inform audience creation within Explorer, Client:
        1. will ensure Client Personal Data meets Merkury specifications,
        2. acknowledges that ingestion of Client Personal Data relies on Identity Resolution functionality (such as to match records and assign pseudonymous identifiers), and
        3. agrees that the Identity Resolution terms apply.
      3. Explorer enables authorized users to size intended audiences relative to specified attribute section criteria and, where supported, Ad Delivery Platforms user/subscriber base.
        1. Merkle does not warrant the accuracy of these sizes or the degree to which such intended audience members may be reached on such Ad Delivery Platforms.

    2. Audience Delivery

      Audience Delivery component completes transmission of Targetable Audiences to mutually agreed Ad Delivery Platforms, via either Merkury’s proprietary integrations or a third-party.

      1. Client agrees that, to the extent Merkle’s third-party data onboarding providers are utilized:
        1. such onboarding providers are intended third-party beneficiaries of these Terms of Use; and
        2. Merkle may suspend audience delivery using such third-party onboarding provider until such time as Client reviews and approves (email to suffice for approval) additional terms required by such onboarding provider.
      2. Merkle will use commercially reasonable efforts to ensure audiences are delivered to the intended Ad Delivery Platform in a timely manner. Merkle cannot guarantee when delivered audiences will be available in the destination platform and does not warrant that connections with Ad Delivery Platforms will be uninterrupted.

    3. Contextual Intelligence

      Contextual Intelligence differs from audience targeting by applying analysis of media content and consumer interactions with it to transform user behavior into insights, and inform targeting based on specific media properties/pages.

      1. MERKLE OFFERS CONTEXTUAL INTELLIGENCE “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR THAT ACCESS TO MERKURY WILL BE UNINTERRUPTED. IN NO EVENT SHALL MERKLE, ITS AFFILIATES, SUPPLIERS OR LICENSORS, BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES.

    4. Activate Bidder

      Activate Bidder (“Activate”) enables authorized users to configure media campaigns to flexibly and/or programmatically bid on ad serving inventory within chosen Ad Delivery Platforms.

      1. Merkle (or, as applicable, Merkle’s affiliate) will use commercially reasonable efforts to ensure that media vendors perform their obligations relative to Merkury Functionality, but Merkle does not guarantee any such media vendor’s performance. For the avoidance of doubt, Merkle’s indemnification obligations to Client for any services provided by a media vendor under these Terms of Use is limited to the pass-through third party indemnification provided to Merkle by such media vendor.
      2. Client authorizes Merkle and, as applicable, Merkle affiliates, to agree to other terms necessary to utilize the Ad Delivery Platforms.
      3. Merkle may retain for its use, and use of its partners, aggregated statistics and/or anonymized information without reference to Client or identified consumers as reasonably necessary to provide, operate, and manage the products provided.
      4. Targetable Audiences and/or Contextual Intelligence may be used in conjunction with Activate. Where such usage occurs, applicable fees for use of Targetable Audiences and/or Contextual Intelligence will be assessed separately from Activate and media charges.
      5. Unless otherwise agreed by the parties in an applicable SOW, Client is responsible for all media vendor contracting, financial management, billing, and payment directly with the applicable media vendor(s) with regards to media placed through Activate.

    5. Login Access

      Merkle may provide credentials to specified individuals for direct access to any or all Media Suite functionality for use by or on behalf of Client or Client third-parties (each an “Media Suite Login”), in accordance with an Order. To the extent such access is granted, Client agrees to:

      1. ensure the use of each Media Suite Login is limited to the individual expressly assigned by Merkle;
      2. safeguard against the sharing of any Media Suite Logins beyond those individuals expressly assigned access;
      3. prohibit concurrent use of access credentials across multiple devices;
      4. not utilize access or data within Media Suite functionality in a manner which defeats data pseudonymization; and
      5. accept responsibility for any action or inaction taken with a Media Suite Login provided.
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