PERSONABUILDER GENERAL TERMS AND CONDITIONS

Your order that references these terms is subject to the following provisions, including the consumer protection terms (collectively, the “Agreement”):

Payment

You will pay Wiland for the Products as set forth in your order. In all cases, prices do not reflect taxes or any charges for using a non-Wiland platform, bidding on impressions, etc., and those amounts will be paid by you or any advertiser who is a client of yours (each, an “End User Advertiser” and, collectively, “End User Advertisers”). Failure to make timely payments will constitute a default and will entitle Wiland to suspend its provision of the Products immediately.

Confidentiality

“Confidential Information” is information that is identified as confidential or would reasonably be considered confidential in the circumstances under which it was disclosed. Each of Wiland and Client will use reasonable efforts not to disclose the other party’s Confidential Information to third parties other than as contemplated by the Agreement. Wiland’s Confidential Information includes the terms and pricing under the Agreement, Wiland’s data (which includes its partners’ data), Wiland’s data mapping and audience creation/modeling techniques and processes, Wiland’s audience deployment methods and partners, the identity of Wiland’s vendors and other related data and information. Your Confidential Information includes your customer information and your strategies, goals and results. The receiving party will limit access to the disclosing party’s Confidential Information to the receiving party’s own employees, agents, contractors, service providers, and consultants (collectively, “Representatives”) who have a need to know such information; provided, however, that such Representatives have executed an agreement with the receiving party with confidentiality provisions at least as restrictive as those contained herein. The parties will ensure the individual compliance of their respective Representatives with the Agreement and will be responsible for any actions or inactions of such Representatives.

Intellectual property

Notwithstanding any provision of the Agreement to the contrary, the following shall be and remain the sole property of Wiland: (a) The Products and any data or metadata produced from the Products or through use of the Products; (b) Wiland data, proprietary applications, data models, proprietary business rules, as well as all computer programs, code elements, routines, libraries, tools, methodologies, processes, or technologies created, adapted, or used by Wiland in its business generally, including all associated intellectual property rights. Further, the following shall be and remain the sole property of you: your data that is used in connection with the Products.

Data Requirements; Data Use License

You must not submit the following types of data: (a) financial account numbers or access codes (e.g., bank account or credit card numbers or PINs), (b) government identification numbers (e.g., social security or driver’s license numbers), (c) protected health information as defined by HIPAA or other sensitive individual health information as defined in industry self-regulatory guidelines such as those issued by the Data and Marketing Association, and (d) personally identifying information about children. If Wiland data is received by you regardless of form, it is provided pursuant to a limited use and duration license for the Subscription Period and you may not transfer such data to any third party unless expressly allowed in your order. You may use the Wiland data only for analytic purposes unless it was created by Wiland solely and specifically for audience targeting. If any Wiland data is provided to you anonymized, you may not de-anonymize it. Notwithstanding the aforementioned limited use, if applicable, you are licensed to share the downloadable Wiland reports, tables, and derived insights, resulting from the use of the Wiland service with any End User Advertiser as part of your services to such End User Advertiser. An End User Advertiser is not required to execute a data license directly with Wiland if the data is part of your services to such End User Advertiser. When using the products you are required to select the correct type of advertiser you represent. This allows for customization while ensuring compliance with any applicable data source restrictions that may apply based on the type of advertiser for which you are using the system. You may not retain an audience for internal use or for general use in your databases nor learn or retain any intelligence from an audience for any purpose other than to facilitate audience targeting. Wiland may remove an audience from a platform in the event of breach or challenges with the audience such as consumer protection concerns. Any Wiland data received by you must be destroyed once the Subscription Period has ended and, upon request by Wiland, you must certify in writing such destruction.

Misuse of Wiland Products

You agree to indemnify and hold Wiland, its agents and employees harmless from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (a) arising out of your violation of Sections 4 and 6 hereof or any of the consumer protection terms, and (b) if applicable, from any third party claim relating to your relationship with End User Advertisers or their use of Wiland products and services.

Warranties

Wiland will use reasonable efforts to provide its services in a professional manner, but you understand that Wiland does not guarantee that the products or services provided by Wiland will achieve your goals or any specific marketing results, meet your requirements or be error-free. Wiland makes no warranty with respect to turnaround times for analyses as times will vary depending on the size of the analysis, system volume, and other factors, and Wiland reserves the right to delay submitted jobs or limit the number or size of jobs at its discretion for system performance or stability reasons. The Wiland data is provided on an as-is, as-available basis. THERE ARE NO OTHER WARRANTIES HEREUNDER, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR, WITH RESPECT TO DATA PRODUCTS, ACCURACY, COMPLETENESS, OR CURRENTNESS. FOR ANY BREACH OF WILAND’S WARRANTY SET FORTH IN THIS SECTION 6 EXCLUSIVELY AND WITHOUT HAVING ANY EFFECT ON ANY OTHER CLAIMS THAT YOU MAY HAVE OR ASSERT, YOUR EXCLUSIVE REMEDY AND WILAND’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT PRODUCT OR SERVICE THAT CAUSED THE BREACH OF WARRANTY, OR, IF WILAND CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT ORDER. Either party may suspend the Agreement if performance or delivery would be illegal or in violation of any applicable law, rule, or regulation.

Limitation of Liability

EXCEPT FOR THE INDEMNIFICTION OBLIGATION UNDER SECTION 5 AND YOUR PAYMENT OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE, PROFITS, OR GOODWILL, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. WILAND’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS YOU PAID TO WILAND FOR THE ORDER GIVING RISE TO THE LIABILITY IN THE PRIOR 12 MONTHS (OR IF NOT ARISING UNDER A SINGLE ORDER, THEN THE MOST RECENT ORDER), LESS ANY REFUNDS OR CREDITS PAID BY WILAND. WILAND WILL HAVE NO LIABILITY TO END USER ADVERTISERS RELATING TO PRODUCTS AND SERVICES PROVIDED UNDER THE AGREEMENT.

Miscellaneous

The Agreement shall be governed and construed in accordance with the laws of the State of Colorado, without regard to conflict of law principles. In the event of a conflict, the General Terms and Conditions will control and resolve the conflict, unless specifically stated otherwise in your order. Neither party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any act of nature, governmental authority, public enemy, terrorism, war (whether or not declared), riot, civil commotion, insurrection, or any other cause beyond the reasonable control of the party delayed. The Agreement constitutes the entire agreement between the parties with respect to this subject-matter and supersedes any and all written or oral prior agreement and understandings between the parties. If any provision of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other provisions herein. Unless otherwise specifically provided for in the Agreement, no provision of the Agreement, express or implied, is intended to confer rights or other benefits to any third party. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right. Any provision of the Agreement that contemplates performance or observance subsequent to any termination of the Agreement, including all provisions with respect to fees, proprietary information, confidentiality, and limitation of liability, shall survive any termination of the Agreement and continue in full force and effect. Wiland reserves the right to change or modify the provisions contained herein, at any time at its discretion in order to impose restrictions on the use of audiences to the extent they are imposed on Wiland by (a) applicable laws or any judicial or regulatory interpretations thereof, or (b) Wiland’s data providers. Any changes or modifications will be effective upon posting of the revisions to its site. Wiland may deliver notice by any of the following methods: (i) by posting a change notice on its site or through notices within the Products; or (ii) by giving you notice of the change or modification. CLIENT’S CONTINUED USE OF THE PRODUCTS FOLLOWING SUCH NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

Consumer Protection Terms

You acknowledge that the Wiland data shall at all times remain the intellectual property of Wiland and its licensors and third-party data owners (collectively the “Data Owner”) who provided the data to Wiland, and that you have no proprietary rights whatsoever in the Wiland data.

Permitted Uses / Restrictions. You may use the Wiland data provided pursuant to the Agreement, subject to the following: The Wiland data may be used for online marketing programs to consumers in the United States for marketing your products and services, or if applicable, those of the applicable advertiser who is a client of yours (“End User Advertisers”).

If you elect to activate marketing audiences through PersonaBuilder, the following shall apply:

  • In all consumer marketing uses, the Wiland data is to be used to determine a consumer’s interest in or likelihood to respond to the marketing solicitation and not for exclusionary or discriminatory purposes.
  • When the Wiland data is used in marketing programs, it may be used as selection criteria for purposes of identifying the advertising target for marketing solicitations via advertising campaigns; provided, however, all marketing communications shall: (i) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation; (ii) comply with all applicable laws, rules and regulations; and (iii) comply with applicable privacy policies and, where applicable, the principles and/or best practices set forth within the following websites: Digital Advertising Alliance (digitaladvertisingalliance.org or successor site), Mobile Marketing Association, in particular its Best Practices Guide (mmaglobal.com or successor site), Federal Communication Commission (fcc.gov or successor site), and Interactive Advertising Bureau, in particular its Best Practices and its Self-Regulatory Guidelines and Behavioral Advertising Principles (www.iab.net or successor site).
  • You may not use or permit the use of the Wiland data as a factor in establishing an individual’s creditworthiness or eligibility for credit, insurance or employment or credit repair services.
  • The Wiland data will not be used to advertise, sell, or exchange any illegal or illicit products or services, including, without limitation, pornography, illegal drugs, illegal weapons or gambling offers. The Wiland data may not be used in an individual look-up reference application.
  • You or, if applicable, the End User Advertiser shall be responsible for accepting and responding to any communication initiated by a consumer (“Consumer Inquiries”) arising out of your use of the Wiland data. Wiland will refer any such consumer that contacts Wiland directly to your designated client contact.
  • You agree (or, if applicable, you agree to require the End User Advertiser) to honor consumers’ elections not to receive marketing solicitations and in the event that the choice not to receive marketing solicitations is not honored, Wiland may end your access to PersonaBuilder, cease any delivery of Wiland data and terminate the Agreement immediately. You (or, if applicable, the End User Advertiser) must maintain a privacy policy that (i) provides consumers a point of contact (e.g., website, telephone number or address) where a consumer may opt-out of marketing or advertising communications; and (ii) explains your (or, if applicable, the End User Advertiser’s) active or passive collection, use and transfer of personally identifiable or anonymous data related to a consumer or a user.

Click HERE to visit Wiland PersonaBuilder page.

Revised 8/12/21