DATA LICENSE AGREEMENT
[Version dated August 13, 2024]
This Data License Agreement (this “Agreement”) is by and between PlaceIQ, Inc. (“PlaceIQ”) and Customer (“Customer”). PlaceIQ and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, PlaceIQ makes certain PlaceIQ Data available to Customer via the PlaceIQ Data Delivery Mechanism; and
WHEREAS, subject to the terms and conditions of this Agreement, Customer wishes to be granted a non-exclusive, non-transferable license to (i) access the PlaceIQ Data via the PlaceIQ Data Delivery Mechanism, and (ii) process the PlaceIQ Data on the Customer Platform solely for (A) the Permitted Uses, and (B) the purposes of creating Reports, subject to the restrictions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intending to be legally bound hereby agree as follows:
1. DEFINITIONS
“Authorized User” means designated employees and agents of Customer whom the Parties have permitted access to PlaceIQ Data via the PlaceIQ Data Delivery Mechanism.
“Customer Platform” means the software and data analytics platform used by Customer to process PlaceIQ Data in connection with creating Reports.
“Data Fees” means the fees or any applicable revenue share payable by Customer as set forth in the accompanying Order.
“Personal Information” means (i) all information identifying, or that alone or in combination with other information allows for the identification of, an individual, device, or household; and (ii) any information that is defined as “personal information,” “personal data,” “protected health information,” or other similar term under any applicable Privacy and Data Security Laws. For the avoidance of doubt, Personal Information includes “Sensitive Personal Information” and “Sensitive Personal Data” as such terms may be defined in applicable Privacy and Data Security Laws.
“PlaceIQ Data” means the data described in the accompanying Order that PlaceIQ licenses to Customer pursuant to this Agreement.
“PlaceIQ Data Delivery Mechanism” means the data delivery mechanism maintained by PlaceIQ to deliver the PlaceIQ Data via Customer’s chosen secure delivery platform or cloud service provider.
“Privacy Agreements” means any contracts, commitments, obligations or responsibilities to affiliated and unaffiliated third parties, including individuals, governing the Processing of Personal Information.
“Privacy Commitments” means any and all (a) applicable Privacy and Data Security Laws, (b) Privacy Policies, (c) Privacy Agreements, and (d) applicable published industry best practice or rules of any applicable self-regulatory organizations, including but not limited to the Digital Advertising Alliance Principles and National Advertising Institute Code of Conduct, in which Customer is or has been a member.
“Privacy and Data Security Laws” means any laws, regulations, rules, obligations, applicable industry standards and published guidance relating to privacy, data protection, data transfers, the Processing of Personal Information, the security of Personal Information, data breach disclosures and notification, and/or data broker registrations.
“Privacy Policies” means all internal and public facing policies, notices, and statements concerning the privacy, security, and/or Processing of Personal Information.
“Processing” (or its conjugates) means any operation or set of operations that is performed upon data, including Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, transfer, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, or instruction, training or other learning relating to such data or combination of data, including Personal Information.
“Order” means the finalized legal document created by the Parties after Customer accepts PlaceIQ’s quote.
“Reports” means the analysis, visualizations, data, derivative works, and information created by Customer that consist of and/or result from Customer’s analysis or use of the PlaceIQ Data on the Customer Platform. Reports shall not contain any PlaceIQ Data in its original form under any circumstance.
“Sensitive Location” means (i) places of worship, including without limitation locations used as gatherings for the purposes of religious worship; (ii) correctional facilities; (iii) places that can be used to infer an LGBTQ+ identification or sexual preference; (iv) places that infer engagement with explicit sexual content, material, or acts; (v) places primarily intended to be occupied by children under 16 (including without limitation nursery schools, elementary and middle schools, day care centers, etc.); (vi) domestic abuse shelters, including without limitation rape crisis centers and shelters for abused or battered men, women, or children; (vii) welfare, homeless shelters and halfway houses, and other similar social service centers; (viii) dependency or addiction treatment centers, including without limitation those used to treat alcohol, gambling or drug dependencies or addictions; (ix) medical facilities that cater predominantly to sensitive conditions, such as cancer centers, HIV/AIDS, fertility or abortion clinics, mental health treatment facilities, or emergency room trauma centers; (x) places that may be used to infer refugee or immigrant status, such as refugee or immigration centers and immigration services; (xi) credit repair, debt services, bankruptcy services, or payday lending institutions; (xii) temporary places of assembly such as political rallies, marches, or protests, during the times that such rallies, marches, or protests take place; (xiii) military bases (including without limitation recruitment centers located on military bases) and first responder locations, including without limitation fire departments and police departments; and (xiv) locations where firearms are sold or used (including without limitation gun dealers and shooting ranges) but excluding general sporting and retail locations.
“Term” means the term of this Agreement beginning on the date described in the Order (“Effective Date” or “Start Date”) and ending on the date described in the Order (“End Date”).
2. PROCESSING OF PERSONAL INFORMATION
2.1. Processing Instructions for Processing Personal Information. Both Customer and PlaceIQ shall Process Personal Information for the purpose of this Agreement and in compliance with all Privacy Commitments.
2.2. Nature and Purpose of Processing. The nature and purpose of the data Processing under this Agreement is the provision of PlaceIQ Data that PlaceIQ licenses to Customer pursuant to this Agreement.
2.3. Type of Data Subject to Processing. The subject matter of the data processing under this Agreement is PlaceIQ Data.
3. Duration of Processing. The duration of Processing under this Agreement will be the Term, as specified in the applicable Order.
3.1 Rights and Obligations of Both Parties. PlaceIQ acts as a third party that provides PlaceIQ Data to Customer.
4. DATA DELIVERY AND ACCESS
4.1. Delivery. During the Term, PlaceIQ will update and deliver the PlaceIQ Data to Customer electronically via the PlaceIQ Data Delivery Mechanism as described in the Order.
4.2. Data Access. During the Term, Customer may access the PlaceIQ Data via the PlaceIQ Data Delivery Mechanism. PlaceIQ and Customer will agree upon the PlaceIQ Data Delivery Mechanism for use by Customer’s Authorized Users. Customer is responsible for the activity of its Authorized Users and their compliance with this Agreement in relation to their access to and use of the PlaceIQ Data Delivery Mechanism, creation of Reports, and processing of PlaceIQ Data.
5. DATA LICENSE AND USE
5.1. Data License. Subject to the terms and conditions of this Agreement, PlaceIQ grants to Customer a non-exclusive, non-transferable license during the term of this Agreement in the United States only to (i) access the PlaceIQ Data via the PlaceIQ Data Delivery Mechanism, (ii) process the PlaceIQ Data on the Customer Platform solely for (A) the permitted uses set forth in the applicable Order of this Agreement (“Permitted Uses”), and (B) the purposes of creating Reports for internal business purposes only, subject to the restrictions set forth in this Agreement. Reports shall not be used for activation and/or measurement.
6. REPRESENTATIONS OF THE CUSTOMER
6.1. Customer shall at all times Process PlaceIQ Data in compliance with all Privacy Commitments and other applicable legal requirements.
6.2. Customer shall not Process PlaceIQ Data for purposes of or in connection with (1) determining employment, credit, health care, or insurance eligibility, (2) creating anonymized or aggregate data, (3) any unlawful or illegal purposes, or (3) discriminating against any person or promoting bigotry, racism, or harm. Further, Customer shall not Process or reverse engineer PlaceIQ Data in a manner that would make PlaceIQ Data attributable to (i) persons located outside the United States of America, (ii) persons under the age of eighteen (18), or (iii) a Sensitive Location or a person or device’s association with or proximity to a Sensitive Location.
6.3. Customer represents that it will (a) grant PlaceIQ the right to take reasonable and appropriate steps to ensure that Customer uses PlaceIQ Data in a manner consistent with PlaceIQ obligations under applicable Privacy Commitments, (b) notify PlaceIQ if Customer makes the determination that it can no longer meet obligations under applicable Privacy Commitments, (c) grant PlaceIQ the right, upon reasonable notice, to take reasonable and appropriate steps to stop and remediate the use of PlaceIQ Data, (d) take reasonable and appropriate steps to stop and remediate unauthorized use of PlaceIQ Data.
6.4. Customer represents and warrants that any Reports may be presented (and provided) to internal Customer teams and used and shared solely for internal business purposes. Reports or portions thereof shall at all times remain subject to confidentiality obligations that restrict the public disclosure (or disclosure to any other third party, other than any entity acting on behalf of Customer and subject to a nondisclosure agreement or comparable confidentiality restrictions) and use of the Reports. Reports are for the Customer’s internal business use only. Reports may not be published, shared, disclosed to anyone else, or made publicly available without the prior written approval of PlaceIQ. In each Report, Customer will attribute the findings and conclusions that utilized the PlaceIQ Data to PlaceIQ (as the source of the underlying data) in the form of “SOURCE: PlaceIQ” using the PlaceIQ logo (with the placement and presentation as mutually agreed). The PlaceIQ logo may not be altered, minimized, or obscured.
6.5. Customer shall not disclose, release, distribute, or deliver the PlaceIQ Data, or any portion thereof, to any other person or third party without PlaceIQ’s prior written consent. Any purpose or use of the PlaceIQ Data not specifically authorized herein is prohibited unless otherwise agreed to in writing by PlaceIQ. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the PlaceIQ Data, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the PlaceIQ Data; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the PlaceIQ Data or methods used to compile the PlaceIQ Data, in whole or in part; (iv) remove any proprietary notices included within the PlaceIQ Data; (v) publish, enhance, or display any compilation or directory based upon information derived from the PlaceIQ Data; or (vi) use the PlaceIQ Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
6.6. Customer acknowledges and agrees that there will be situations where new locations will not be added for reasons including, but not limited to: (i) that the actual location is not visible or cannot be visually verified, satellite imagery is unavailable/obscured, verification/data sources are contradictory, or the location is undefined or located within a multi-tenant building (on a floor of a high rise, in a densely populated building with other tenants/residents, in a mall, is a kiosk or temporary store, etc.); (ii) there is limited or non-existent visitation data (depending on the real-world visitation data received) for locations with a very limited footprint (only one (1) location or very few locations in sparsely populated areas); or (iii) the location does not comply with PlaceIQ’s Sensitive Location policies or Privacy Commitments.
7. Security
7.1. Customer has in place and maintains a documented information security program and uses commercially reasonable and appropriate legal, organizational, physical, administrative, and technical measures and security procedures to safeguard and ensure the security of the PlaceIQ Data, the Customer Platform, and Reports.
7.2. Customer has not received and is not aware of any order, request, warning, reprimand, inquiry, notification, allegation, or claim alleging that it is in violation of or has not complied in any respect with any Privacy Commitment. Customer is not currently and has not previously been under investigation, or subject to any complaint, demand, cease and desist letter, audit, proceeding, investigation, enforcement action, inquiry, or claim, initiated by any (i) governmental body, (ii) state, federal or foreign self-regulating body, or (iii) any person, alleging that Customer is in violation of any Privacy Commitment.
7.3. PlaceIQ shall comply with applicable Privacy Commitments.
8. PAYMENT
8.1. Payment Terms. Customer will pay PlaceIQ the Data Fees as set forth in the applicable Order. Invoices will be sent to the billing contact as instructed by Customer.
Data Fees do not include any applicable sales or use taxes, which (if applicable) will be charged separately, unless Customer provides (in advance) a valid tax exemption certificate authorized by the applicable taxing authority. Late payments (on any undisputed amounts) may be subject to interest charges of 1% per month (or the maximum permitted by law, whichever is lower) and the expenses incurred with those collections. Except as otherwise provided in this Agreement, all payment obligations are non-cancelable and once paid are nonrefundable.
Customer will be responsible for paying all applicable transaction taxes, including but not limited to sales and use taxes, and other government-imposed transactional charges (“Transaction Taxes”) on amounts payable by Customer under this Agreement. PlaceIQ will separately state on its invoices, or provide a separate invoice, the Transaction Taxes that PlaceIQ is required to collect from Customer under applicable law. Customer will provide proof of any exemption from Transaction Taxes to PlaceIQ within 30 days of the invoice date for paying an invoice. If PlaceIQ does not collect the required Transaction Taxes from Customer but is subsequently required to remit such Transaction Taxes to any taxing authority, Customer will promptly reimburse PlaceIQ for such Transaction Taxes.
9. TERM; TERMINATION
9.1. Term. Unless otherwise stated in the Order, this Agreement will begin on the Effective Date specified in the applicable Order, and unless terminated earlier, this Agreement will end on the end date of the applicable Order.
9.2. Termination for Cause. This Agreement may be terminated by a Party for cause if the other Party commits a material breach of this Agreement and does not cure that breach within 30 days from receiving written notice of the breach. If Customer terminates this Agreement for cause, PlaceIQ will return to Customer the unused portion of the Data Fees paid for the applicable portion of the Term.
9.3. Termination for Other Events. PlaceIQ may suspend or terminate this Agreement (with written notice), if PlaceIQ determines that (a) Customer is not in compliance with the terms of this Agreement or has failed to notify PlaceIQ that any of the representations made in this Agreement are no longer complete and accurate; (b) the procurement of PlaceIQ Data has become impractical or unfeasible for legal or regulatory reasons, and in such event, will return to Customer the unused portion of the Data Fees paid for the applicable portion of the Term; or (c) PlaceIQ becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or has been liquidated, voluntarily or otherwise.
9.4. Effect of Termination. On termination of this Agreement, Customer will immediately stop using the PlaceIQ Data Delivery Mechanism to access PlaceIQ Data and will delete all PlaceIQ Data stored on the Customer Platform (or otherwise in possession or control of Customer). Sections 4, 8, 9.2 and 11 will survive termination of this Agreement. Customer will provide a written certification indicating that it has deleted PlaceIQ Data.
10. PROPRIETARY RIGHTS
10.1 Confidentiality. The terms and conditions of this Agreement, and any policies, business practices, plans and methods not in the public domain which may be known or disclosed by either party to the other as a result of this Agreement (“Confidential Information”) will be held in confidence and not disclosed to third parties. A party receiving information from the other party agrees not to use any Confidential Information of the other party except as reasonably required to exercise its rights or perform its obligations under this Agreement. Each Party agrees to cause its employees, subcontractors, agents and Affiliates, who require access to such Confidential Information to abide by such obligations.
10.2 Ownership. PlaceIQ and/or its licensors own (and will continue to own) the PlaceIQ Data (including any compilations of the PlaceIQ Data). PlaceIQ grants to Customer a perpetual license to use the Reports that the Customer creates.
11. REPRESENTATIONS; LIABILITY
11.1. General Representations. Each party represents to the other that: (1) it is qualified to transact business and has the power and authority to enter into and to perform its obligations and/or grant the licenses herein, and (2) this Agreement (and/or the performance of/or exercise of the rights under this Agreement) will not violate, breach, or conflict with any other agreement, law, or obligation (now or after the Effective Date) to which it is bound.
11.2. Liability. Except for any gross negligence, willful misconduct, a party’s indemnification obligations (pursuant to Section 11), or a breach of confidentiality, neither party will be liable for (1) any indirect, consequential, or incidental damages, (regardless of the basis or type of claim and even if previously advised of the possibility of such damages), and/or (2) an amount that exceeds the applicable Data Fees for the applicable Term. These exclusions are meant to apply to the fullest extent permitted by applicable law and regardless of the failure of any specific remedy.
12. INDEMNITY
12.1. By PlaceIQ. PlaceIQ shall indemnify, defend and hold Customer harmless from and against any claim brought against Customer by a third party, any final award of damages or settlement amount, and any liabilities and expenses incurred by Customer (including reasonable attorneys’ fees) resulting from the claim that alleges the use (as permitted by this Agreement) of the PlaceIQ Data infringes the proprietary rights of others, and that the collection of the PlaceIQ Data by PlaceIQ independently violates an applicable law or regulation.
12.2. By Customer. Customer will defend, indemnify and hold PlaceIQ harmless from and against any claim brought against PlaceIQ by a third party, any final award of damages or settlement amount, and any liabilities or expenses incurred by PlaceIQ (including reasonable attorneys’ fees) resulting from the claim that alleges the improper use or disclosure (other than as permitted by this Agreement) of the PlaceIQ Data and/or the use of the PlaceIQ Data in connection with a Report or Customer’s services that violates an applicable law or regulation, or infringes the proprietary rights of others.
12.3. Process. The indemnified party will promptly notify the indemnifying party in writing of the claim (a delay in providing notice does not excuse these indemnity obligations unless the indemnifying party is prejudiced by that delay), give the indemnifying party sole control of the defense of the claim (and in any related settlement negotiations), and cooperate (at the indemnifying party’s request and expense) in the defense of the claim. The indemnified party may participate in the defense of the claim using its own counsel (at its own expense). The indemnifying party may not settle the claim without the indemnified party’s consent if the settlement imposes a payment or other obligation on the indemnified party.
13. GENERAL
13.1. Relationship of the Parties. This Agreement does not create or imply any agency, legal partnership, or franchise relationship or any third-party beneficiaries. Neither party has the authority to assume or create any obligation on behalf of the other party (without that party’s written permission).
13.2. Audit Rights. PlaceIQ reserves the right, with at least 10 business days advance notice, to audit Customer for the purpose of ensuring that Customer is complying with the terms of this Agreement.
13.3. Assignment. This Agreement may not be transferred or assigned without the other party’s prior written permission, except to an affiliate or in connection with a merger, reorganization, or sale of all or substantially all the assets or equity of that party. Any assignment other than as permitted in this Agreement will be null and void.
13.4. Notices. Any notice required under this Agreement must be delivered by electronic means to the Party’s email address designated in the Order or in writing and be sent by overnight courier or delivered in person to the Party’s address set forth in the Order.
If to PLACEIQ:
Attn.: Global Privacy Office
Precisely Software Incorporated
1700 District Ave Suite 300
Burlington, MA 01803
email: privacy@precisely.com
If to CUSTOMER:
PlaceIQ may provide any notice to Customer under this Agreement by: (1) posting a notice on this webpage; or (2) sending a message to the email address then associated with Customer’s account on the Order.
Notices provided by PlaceIQ by email will be effective when PlaceIQ sends the email. It is Customer’s responsibility to keep its email address current. Customer will be deemed to have received any email sent to the email address then associated with its account when PlaceIQ sends the email, whether or not Customer actually receives the email.
13.5. Force Majeure. Neither party shall bear any responsibility or liability for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any act of God, act of governmental authority, act of public enemy, or due to war, riot, flood, terrorism, civil commotion, insurrection, severe weather conditions, or any other cause beyond the reasonable control of the party delayed, including data supplier availability or restrictions.
13.6. Governing Law. This Agreement is governed by the laws of the State of New York (without regard to any conflict of laws principles). This Agreement Customer hereby irrevocably consents to the exclusive jurisdiction of, and confers such jurisdiction upon, the courts in such jurisdiction in connection with any action, suit, or other proceeding arising out of, or relating to this Agreement, and all claims, counterclaims and crossclaims in any actions, suits or proceedings.
13.7. Entire Understanding. No terms in any other documentation are incorporated into or form any part of this Agreement. Any waiver, modification or amendment of this Agreement must be in writing and signed by both parties. If any term of this Agreement is found to be void or unenforceable, the other terms will remain in effect. This Agreement is the entire agreement between the parties on this topic (superseding any prior or contemporaneous agreements. By executing an Order that incorporates the terms of this Agreement by reference, you agree to be bound by this Agreement. By accepting this Agreement on behalf of Customer or other legal entity, you represent that you have the authority to bind that entity to the agreement. All headings are for ease of reference and are for convenience only, and do not affect interpretation.
In the event of any conflict or inconsistency between the Agreement terms and any terms in the Order or other document, the Agreement terms shall prevail.