This is a Data Authorization Agreement for the use of the Data (“Agreement”) between you (“Customer”) and VIZIO Services, LLC (“VIZIO”). Under this Agreement, VIZIO authorizes Customer to receive from VIZIO’s authorized data partner, Data Plus Math Corporation (“Data Plus Math”), the Data.

Definitions

“Data Plus Math Customer” means, for any given period, any person or entity who is entitled to access or receive the Data during such period.
“Data Plus Math Customer Agreement” means an agreement between Customer and Data Plus Math setting forth the terms for the delivery of the Data.
“Data” means the VIZIO proprietary data provided by Data Plus Math as contemplated in the Data Plus Math Customer Agreement.
“Data Matching Provider” means a third party who has been approved by VIZIO to Match the Data with other data to create a new dataset.
“Direct Matching” means Matching performed internally by Customer using IP addresses as the match key. Direct Matching excludes any Matching performed externally by a third party.
“Match” means, with respect to data, to match, combine or append other data with or to such data.
“Personal Information” means any information that could identify an individual or household, either directly or indirectly, including without limitation, the individual’s name, home or business address, Social Security Number or other government-issued identification number, date or place of birth, phone number or email address, and credit card or other bank or financial information. Solely for purposes of this Agreement, Personal Information does not include Data, IP addresses, device IDs, mobile advertising IDs (MAIDs), TV advertising IDs (TAIDs), user agents, any customer IDs/numbers held in a cookie or other cookie IDs, or other types of digital identifiers allowed in the course of a Match permitted in this Agreement, except to the extent any such identifier is stored with, linked to, or provided with Personal Information.
“Third Party Matching” means Matching performed externally by a Data Matching Provider.

VIZIO’s Relationship to Data Plus Math

VIZIO is not a party to the Data Plus Math Customer Agreement. Data Plus Math alone will deliver the Data to Customer. Data Plus Math is not to be deemed to be an employee, agent, subcontractor or authorized representative, partner or joint venturer of VIZIO. This Agreement governs the use of the Data.
VIZIO ACCEPTS NO LIABILITY FOR ANY CLAIMS ARISING OUT OF ANY ACT OR OMISSION, INCLUDING NEGLIGENCE, BY DATA PLUS MATH INCLUDING IN PROVIDING NONCONFORMING DATA. IN OBTAINING THE DATA, CUSTOMER IS RELYING ON DATA PLUS MATH’S SPECIFICATIONS ONLY AND IS NOT RELYING ON ANY STATEMENTS OR SPECIFICATIONS THAT MAY BE PROVIDED BY VIZIO OR ITS AFFILIATES.

Data Rights

VIZIO grants to Customer a limited, non-exclusive, revocable (as set forth in the termination provision), non-sublicensable, non-assignable and non-transferable (except as permitted in the assignment provision) right, during the period prescribed by the Data Plus Math Customer Agreement, to use the Data as permitted in the Data Plus Math Customer Agreement for internal purposes only. In the event of a conflict between this Agreement and the Data Plus Math Customer Agreement regarding the use of the Data, the two agreements will be interpreted together in manner that most restricts the use of the Data. Except as expressly provided in this Agreement, VIZIO does not grant Customer any rights, interest, title or licenses in or to the Data, in any form regardless of modification (including by implication, estoppel or otherwise). The Data will include only that information that VIZIO, in its sole discretion, collects in the ordinary course of its business and as changed by VIZIO from time to time in its sole discretion. VIZIO may change, update, discontinue, impose additional restrictions and/or prohibitions on, remove or deprecate, as applicable, the format, arrangement (including but not limited to data fields), structure, media, features, functionality or schema of the Data, in its sole discretion from time to time.

Access to Data by Third Party Service Providers

Customer may provide Data to third party service providers who are each individually identified in the Data Plus Math Customer Agreement as an “Approved Third Party.” Customer may not otherwise provide the Data to any third party, including affiliates of Customer. For avoidance of doubt, Approved Third Parties are not Data Matching Partners unless separately approved by VIZIO as Data Matching Providers. Approval of Approved Third Parties may be revoked by VIZIO at any time with advanced ten (10) days’ notice.

Restrictions

Only to the extent specified in the Data Plus Math Customer Agreement and subject to the restrictions on Matching below, Customer may create a new dataset by Matching the Data to other data via Third Party Matching and/or Direct Matching. The foregoing Matching rights include permission for Customer to create a new dataset by Matching to the Data the following: (a) data from cable set top boxes, streaming devices, broadcast “over the air” receivers or similar devices, but excluding data from connected televisions (collectively, “Third Party Television Viewing Data”); and (b) imprecise location data with latitudinal/longitudinal coordinates measured with no more than two (2) decimal places of precision (e.g., 33.78, -84.39). Any right or restriction with respect to the use of Data under this Agreement will apply equally to such dataset to the extent the dataset contains the Data, unless context clearly requires otherwise. For clarity, this Agreement does not grant rights or impose restrictions on the use of that part of such dataset that is not Data. Further, to support the targeting-oriented use cases (if any) identified in a Data Plus Math Customer Agreement, Customer may internally use such dataset to create audience segments from the Data, perform audience indexing and model the Audience Segments to a representative population sample. Customer may not Match the Data with any of the following data: (a) Personal Information; (b) data from connected televisions; (c) information regarding an individual user’s specific health condition or any information regarding health that would be considered “Sensitive Information,” as such term is defined under the then-current version of the NAI Code of Conduct; (d) nonpublic personal information under the Gramm-Leach-Bliley Act; (e) information, including inferences, regarding an individual user’s sexual orientation; (f) information regarding minors (under 18 years of age); (g) information regarding religious affiliation; or (h) any other data if the resulting dataset could reasonably be used, whether alone or in combination with other reasonably available data, to re-identify or de-anonymize the Data. Customer will not: (a) transmit the Data outside the United States; (b) release, disclose, transfer, assign, sublicense, redistribute or resell the Data to any third party, including affiliates of Customer (unless the affiliate or third party is qualified as an Approved Third Party as described above); (c) attempt to re-identify or de-anonymize the Data or otherwise associate the Data with Personal Information; (d) use the Data to determine any VIZIO device or end user’s physical location with a precision of less than one-half mile (such as street address or latitude and longitude coordinates); (e) attempt to derive the IP address of a VIZIO device for which VIZIO has not provided the IP address as part of the Data; or (f) use the Data in violation of the Data Plus Math Customer Agreement.

Data Protection

Customer will exercise reasonable legal, administrative, technical and physical measures to safeguard the confidentiality and security of the Data. Customer will properly store and segregate the Data in order to comply with its obligations upon termination as set forth under the “Term and Termination” section below. Customer will limit access to the Data to those employees and Approved Third Party who have a strict need to access the Data. If Customer knows or reasonably suspects a breach of security or unauthorized access involving the Data, including an attempt to re-identify or de-anonymize the Data or otherwise associate the Data with Personal Information (each, a “Security Incident”), Customer will notify VIZIO within the most expedient period of time possible (considering the circumstances), but in any event, within seventy-two (72) hours, after becoming aware of such actual or suspected occurrence and specify the extent to which the Data was compromised or disclosed. Thereafter any such Security Incident, and in the time reasonably requested by VIZIO, Customer will, at its own cost and expense: (a) assist and cooperate fully with VIZIO’s investigation of the Security Incident; (b) cooperate with VIZIO in any litigation or other action against third parties reasonably deemed necessary by VIZIO; (c) cooperate with VIZIO in any litigation or other action against VIZIO; and (d) promptly use its best efforts to prevent a recurrence of any Security Incident. Customer will not attempt to re-identify or de-anonymize the Data or otherwise associate the Data with Personal Information, and will not authorize, instruct, or encourage any third party to do so. Customer acknowledges that the Federal Trade Commission considers the Data to be sensitive data. Therefore, during the term of the Agreement and for two (2) years thereafter, Customer will keep complete and accurate books and records pertaining to the access to and use of the Data. During such period, if VIZIO believes Customer is in breach of this Agreement, VIZIO may engage an independent third party to audit and inspect Customer’s books and records solely to the extent necessary to verify its compliance with the terms of this Agreement. Customer will provide all assistance reasonably requested in relation to any such audit, including by ensuring that all Customer personnel (including subcontractor personnel) cooperate. VIZIO will conduct audits during Customer’s normal business hours and in such a manner as not to interfere unreasonably with Customer’s normal business operations, and no more frequently than once per calendar year. Except to the extent necessary to enforce its rights or comply with applicable law or requests of regulatory authorities, VIZIO and its representatives will hold all such information in confidence.

Representations and Warranties; Compliance with Laws; Disclaimer

Customer represents and warrants to VIZIO that Customer has the corporate right, power and authority to enter into this Agreement and perform its obligations hereunder, and that Customer has the necessary rights, licenses, consents, waivers and permissions to use the data that Customer seeks to Match with the Data (including Matching the data to the Data). Customer will comply with all applicable laws, rules, and regulations that govern the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security, disposal, destruction, disclosure or transfer of data, and all such laws governing breach notification, penalties and compliance with orders. Such laws include: (a) federal or state laws prohibiting unfair or deceptive trade practices; (b) published codes of conduct, standards, guidelines or best practices to which Customer has or may from time to time voluntarily agree; and (c) published interpretations by governmental authorities of any of the foregoing. VIZIO DOES NOT MAKE OR GIVE ANY REPRESENTATION, CONDITION, SERVICE LEVEL, INDEMNITY OR WARRANTY ABOUT THE DATA THEREIN AND PROVIDES THE DATA THROUGH DATA PLUS MATH ON AN “AS IS” BASIS. VIZIO MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING THE DATA, AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTY IS MADE THAT USE AND ACCESS OF THE DATA WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE DATA WILL BE CORRECTED, OR THAT THE DATA WILL MEET CUSTOMER’S REQUIREMENTS.

Liability and Indemnity

In no event will VIZIO or its affiliates be liable for any indirect, special, incidental, punitive or consequential damages of any kind or nature whatsoever, relating to this Agreement or the transactions contemplated hereby, including, without limitation, lost profits or lost goodwill, regardless of whether VIZIO has been advised of the possibility of such damage or if such damage could have been reasonably foreseen. The maximum aggregate liability of VIZIO arising out of this Agreement will be one thousand dollars ($1,000).
If a third party asserts a claim against or tenders a claim to VIZIO or its affiliates relating to Customer’s use of the Data in actual or alleged breach of this Agreement, Customer will defend the claim and pay amounts awarded by a court or agreed to in settlement. VIZIO will (a) promptly notify Customer of the claim, (b) give the Customer sole control of the claim and provide reasonable cooperation, and (c) make no admission on behalf of itself or Customer that may impair the defense or settlement of the claim.

Term and Termination

Unless terminated earlier, this Agreement will continue until Customer is no longer entitled to receive the Data under the Data Plus Math Customer Agreement. Either party may terminate this Agreement immediately upon written notice at any time if the other party is in material breach of any provision of this Agreement and has failed to cure that breach within thirty (30) days after written notice thereof.
VIZIO may terminate this Agreement upon thirty (30) days’ notice in the event of either: (a) a change of control of Customer (representing at least 50% of the equity or voting control of Customer, either directly or indirectly through tiers of ownership); or (b) an investment in Customer (representing a change in the equity or voting interests of Customer, either directly or indirectly through tiers of ownership) by any party which VIZIO reasonably deems to be a competitor of VIZIO or its affiliates. Customer will notify VIZIO within five (5) days of the occurrence of an event described above.
Upon expiration or termination of the Data Plus Math Customer Agreement, Customer will no longer be entitled to receive the Data provided thereunder. Unless VIZIO has terminated this Agreement for Customer’s breach or The Data Plus Math Customer Agreement for Data Plus Math’s breach, Customer may continue to use the Data during the wind-down period specified in the Data Plus Math Customer Agreement, if any. After the expiration or termination of the wind-down period, or this Agreement if there is no wind-down period, Customer will promptly and securely purge all Data from its on-line and off-line storage media, including cached data.
Upon expiration or termination of the Agreement, each party will return or destroy the other party’s confidential information at the request of the other party, except that each party may retain all copies of confidential information (excluding Data) that are embedded in archival backups, or which form an integral part of its technical or business records or if required by law, or to the extent necessary to continue performance of its post-termination obligations.
Any terms of this Agreement that expressly survive termination or expiration, or by their nature ought to survive termination or expiration, will survive, including but not limited to provisions regarding confidentiality, disclaimers, exclusions and limitation of liability, indemnification, effect of termination, records maintenance and audit, controlling law and jurisdiction, notices and other provisions of interpretation and enforcement.

Publicity

Neither party will issue any public statement relating to this Agreement without the written consent of the other party.

General

This Agreement is to be governed and interpreted under the laws of California, without regard to conflicts of laws provisions. The exclusive jurisdiction and venue of any action with respect to this Agreement is the state courts of the State of California for Orange County or the United States District Court for the Central District of California. In any action to enforce this Agreement, the prevailing party will be awarded all related costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment and in connection with any appeals. Customer may not assign any rights under this Agreement by operation of law or otherwise without the prior written consent of VIZIO. Any purported assignment in violation of this paragraph is void.
If for any reason a court of competent jurisdiction finds any term of this Agreement to be unenforceable, that term will be enforced to the maximum extent permissible to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. No waiver of any breach of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach, and no waiver will be effective unless in writing and signed by the waiving party. No amendment to this Agreement will be binding unless in writing and signed by each party. Neither party will be liable for any delay or failure to perform its obligations hereunder, other than a payment obligation, due to any cause beyond its reasonable control. Except as expressly provided, the rights and remedies of the parties under this Agreement are cumulative and are in addition to all other remedies available at law or in equity. This Agreement does not create any rights of enforcement in any person who is not a signatory. This Agreement creates no joint venture, partnership, employment, or agency relationship between the parties. This Agreement is the complete agreement regarding the subject matter of this Agreement. Customer will not authorize, direct or encourage a third party to take or refrain from taking any action that, if done by Customer, would be a breach of this Agreement.