This End User License Agreement (the "EULA") governs the agreement between End User and Company.
BY ACCESSING OR USING ANY PORTION OF THE SERVICES OR THE PLATFORM, YOU AGREE TO THE TERMS OF THIS EULA AND THE ATTACHED DATA PROCESSING AGREEMENT (DPA). IF THE CLIENT DOES NOT AGREE TO THESE TERMS, THE CLIENT MAY NOT ACCESS OR USE THE SERVICES AND MUST IMMEDIATELY CEASE ALL USE.
The Services are made available to the Client as a comprehensive audience identification and ad automation solution designed to enhance digital marketing efforts through advanced data intelligence, creative automation, and multi-channel delivery. The Services utilize the proprietary Platform and related technologies owned by the Company. This EULA governs your access and licensed use of the Services and Platform solely for your internal marketing and advertising purposes during the Term.
This EULA does not govern the purchase price, specific campaign deliverables, or payment terms, which are set forth in a separate agreement between the Client and the Company. This EULA, however, gives the Client specific legal and data rights, and may also involve other legal rights in addition, which vary from jurisdiction to jurisdiction.
The parties agree as follows:
1.1 "Services": means a comprehensive audience identification and ad automation solution designed to enhance marketing efforts through advanced data intelligence, creative automation, and multi-channel delivery. The Services under this Agreement include capabilities such as: Monitoring and tracking website traffic and physical locations, Capturing, segmenting, and enriching customer data, Generating creative and deploying ads, and Delivering advertising across multiple channels (Email, Social Media, OTT/CTV, etc.). The Services are made available to Client via the branded modules within the Platform.
1.2 "Platform": The proprietary software and related technologies used by the Company to deliver the Services.
1.3 "End User": An individual or entity targeted or reached through the Client's marketing and advertising efforts using the Services.
1.5 "Confidential Information": Any non-public, proprietary, or sensitive information disclosed by one party to the other, whether oral or written, that is marked or reasonably should be understood as confidential.
2.1 Access to Services: Subject to the terms of this Agreement, the Company grants the Client access to use the Services within the Territory.
2.2 License: The Company grants the Client a non-exclusive, non-transferable license to use the Services and Platform for its own internal marketing and advertising purposes during the Term.
2.3 Restrictions: Client shall not: a) Reverse engineer, decompile, or otherwise attempt to access or derive the source code of the Platform; b) Use the Services for third-party resale; c) Claim ownership of the Services or Platform.
3.1 Use: Client shall use the Services in compliance with applicable law and solely for its own internal business purposes.
3.2 Compliance: Client shall comply with all applicable laws and regulations related to data usage, privacy, and marketing.
3.3 Support: Client will notify the Company of any technical or operational issues and cooperate in resolving them.
4.1 Provision of Services: The Company shall provide the Services and Platform access as outlined in this Agreement.
4.2 Support and Maintenance: As detailed in Exhibit B.
4.3 Data Disclosures and Liability: The specific requirements for consumer disclosures, opt-outs, and compliance with all data protection laws are governed by the Data Processing Agreement (DPA) attached as Exhibit.
Fees, billing schedule, and selected payment structure are detailed in Exhibit C. All fees are non-refundable unless otherwise specified. If any payment is not received within ten (10) days of the due date, the Company reserves the right to assess a late fee up to the maximum amount allowed by applicable law.
6.1 Ownership. All rights, title, and interest in and to the Platform, Services, software, technology, data structures, and any updates, enhancements, modifications, customizations, feedback-driven improvements, or derivative works thereof shall remain exclusively owned by the Company. Nothing in this Agreement shall be construed to grant the Client any ownership rights in the Company's intellectual property.
6.2 Licensed Use & Data Governance. Data delivered to the Client is licensed for use only while actively subscribed, and that use is governed entirely by the Data Processing Agreement (DPA) attached as Exhibit.
6.3 Data Processing Roles and Compliance. The Parties acknowledge that their respective obligations regarding the processing of Personal Information are governed by Exhibit (DPA). Client expressly agrees to the Client Consent Warranty (Section 3.1 of the DPA), ensuring that all Personal Information (PI) provided to the Company is lawful and collected with appropriate consumer notices and consents.
6.4 Data Security and Breach. The Client shall implement and maintain appropriate security measures. All breach notification and security requirements between the Parties shall be governed by Exhibit D (DPA).
6.5 Compliance with Data Laws. The Client shall comply with all applicable local, state, federal, and international laws, regulations, and industry standards in connection with the use, processing, and handling of the Data and Services. The Client is solely responsible for ensuring that its activities do not violate any applicable laws or regulations.
7.1 Confidentiality Obligations: Each party acknowledges that it may receive valuable trade and business secrets and other proprietary and confidential information, including, without limitation, information about the other party's, business, products, equipment, Platforms, techniques and practices, and information related to Partner's Visitors (collectively, "Confidential Information") (for purposes of this Section 7, a party receiving Confidential Information shall be referred to as a "Receiving Party" and a party disclosing Confidential Information shall be referred to as a "Disclosing Party"). The Receiving Party shall, and shall cause its employees and agents to, strictly maintain the confidentiality of the Confidential Information and not disclose, disseminate, sell, or otherwise give Confidential Information to any other person, firm, organization or third party, except for an employee or agent of Receiving Party who has a reasonable need to obtain access and who has agreed in writing to not disclose, and not to use for any other purpose, the Confidential Information.
Notwithstanding the foregoing, the obligations of confidentiality set forth in this Section 7 with respect to Confidential Information shall not apply to any information that: (i) is or becomes publicly known without violation by Receiving Party; (ii) is already known to Receiving Party without restrictions at the time of its disclosure by Disclosing Party, as evidenced by the written records of Receiving Party; (iii) after its disclosure to Receiving Party by Disclosing Party, is made known to Receiving Party without restrictions by a third party having the right to do so; or (iv) is legally required to be disclosed by Receiving Party pursuant to a judicial order from a court of competent jurisdiction (provided that Receiving Party promptly informs Disclosing Party of the requirement and affords Disclosing Party a reasonable opportunity to contest the required disclosure). The foregoing obligations of confidentiality shall survive termination or expiration of this Agreement.
8.1 Client: The Client shall indemnify, defend, and hold harmless the Company, its affiliates, and their respective officers, directors, employees, and agents from and against any claims, damages, losses, liabilities, costs, or expenses (including reasonable attorneys' fees) arising out of or related to: a) the Client's breach of this Agreement including any breach of the DPA; b) the Client's unauthorized use, marketing, or sale of the Services; c) Any claim made by an End User or their customers relating to the Client's acts or omissions; d) Any claim made by a Consumer or End User relating to the End User's misuse of Personal Information or failure to comply with the DPA.
8.2 Company: The Company shall indemnify, defend, and hold harmless the Client, its affiliates, and their respective officers, directors, employees, and agents from and against any claims, damages, losses, liabilities, costs, or expenses (including reasonable attorneys' fees) arising out of or related to: a) Company's breach of this Agreement; b) Any claim that the Services or Platform infringe or misappropriate a third party's intellectual property rights.
Provided that: if any Claim described above shall be asserted against an Indemnified Party, Company shall use commercially reasonable efforts to either: (i) modify the Platform so that it is non-violating; or (ii) acquire the right to use and sell and/or license the same to the Client in accordance with the terms of this Agreement. If (i) and (ii) are not reasonably available to Company within thirty (30) days of the Claim, it may terminate this Agreement.
Company shall have no obligation (a) with respect to any Claim to the extent it is based upon: (i) modification of the Platform other than by or at the direction of Company and/or its contractors or suppliers, where such infringement would not have occurred but for such modification; (ii) the combination, operation or use of the Platform with any service, product or equipment, not reasonably anticipated for use with the Platform or otherwise specified or approved by Company, where such infringement would not have occurred but for such combination, operation or use; (iii) any replacement, modifications or alterations of the Platform unless made by or for Company or with written agreement of Company, where such infringement would not have occurred but for such replacement, modifications or alterations; (iv) any use of the Platform in combination with services, products, equipment, software, or data not supplied or reasonably anticipated for use with the Platform or approved by Company if such infringement would not have occurred but for the combination with such other service, product, equipment, software or data; or (v) the use of the Platform or Platform by Client in violation of this Agreement.
This indemnity obligation shall survive the termination or expiration of this Agreement.
9.1 Term: This Agreement shall commence on the Effective Date and continue until this Agreement is terminated by either party giving to the other party ninety (90) days prior written notice of termination.
9.2 Termination for Cause: Either party may terminate this Agreement immediately upon written notice if the other party: a) Materially breaches this Agreement and fails to cure such breach within 30 days of receiving notice. b) Becomes insolvent, files for bankruptcy, or ceases business operations.
9.3 Effect of Termination: Upon termination: a) Client shall cease using the Services. b) All outstanding fees owed by Client shall become immediately due. c) Each party shall return or destroy all Confidential Information of the other Party.
10.1 Exclusion of Damages: Neither party shall be liable for any indirect, incidental, special, or consequential damages arising out of or related to this Agreement.
10.2 Liability Cap: The total aggregate liability of the Company to the Client for any and all claims shall not exceed the total fees paid by the Client to the Company in the three (3) months immediately preceding the event giving rise to the claim, and shall apply solely with respect to the specific campaign or end user related to such claim. The Company's liability is limited to the campaign in which the issue arises. In no event shall the Company be liable for any indirect, incidental, consequential, special, or punitive damages, including but not limited to loss of profits, revenue, data, or business opportunities, even if advised of the possibility of such damages.
11.1 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of Collier County, Florida.
11.2 Entire Agreement: This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements or understandings.
11.3 Amendments: This Agreement may only be amended in writing signed by both parties.
11.4 Assignment: The Client or End User shall not assign, transfer, charge, sub-contract, or deal in any other manner with any or all of its rights or obligations under this Agreement (including the license rights granted) without the Company's prior written consent, which may be withheld in the Company's sole discretion. Any purported assignment in violation of this section is null and void. The Company may, at any time, assign, transfer, charge, or deal in any other manner with any or all of its rights or obligations under this Agreement to an Affiliate, a successor in interest, or to a purchaser of all or substantially all of the Company's assets or business to which this Agreement relates, without the Client or End User's consent.
11.5 Notices: All notices under this Agreement shall be in writing and sent to the addresses specified above.
The Parties acknowledge that the full terms of the Data Processing Agreement (DPA) govern the obligations of Section 6 of the MSA.
This Data Processing Agreement ("DPA") is attached to and forms part of the EULA between Company ("Company" or "Processor") and Client.
1.1. Applicability. This DPA applies to the extent Personal Information (PI) is subject to Applicable Privacy Laws in the Territory each as defined below.
1.2. Dual Role Acknowledgment. The Parties acknowledge Company's dual role:
| Legal Role | Company's Activity (Client PI) | Client's Activity (Company PI) |
|---|---|---|
| Processor / Service Provider | CDP Management (Liminal CDP, SubLiminal, IntraLiminal, SupraLiminal): Processing Client-provided data (e.g., service records, financing details) solely on the Client's documented instructions. | Controller / Business |
| Controller / Third Party | Data Broker/AdTech (Lead ID, Lead Lure, Lead Patrol, Lead Location, Live Shopper Feed): Creating, selling, or sharing audience segments and enriched records using proprietary data (e.g., resting place, polygons). | Controller / Third Party |
2.1. "Applicable Privacy Laws" Means any and all applicable United States (US) federal or state information privacy laws (as amended) or any regulations or guidance issued pursuant thereto, including but not limited to the following US State Privacy Laws (i) the California Consumer Privacy Act, Cal. Civ. Code 1798.100 et seq., as amended including by the California Privacy Rights Act; (ii) the Colorado Privacy Act, Colorado Rev. Stat. 6-1-1301 et seq.; (iii) the Connecticut Act Concerning Personal Data Protection and Online Monitoring, Conn. Gen. Stat. § 42-515 et seq.; (iv) Delaware Personal Data Privacy Act, Del. Code Ann. tit. 6, § 12D-101 et seq.; (v) Florida Digital Bill of Rights Act Section 501.701 et seq.; (vi) Indiana Consumer Data Protection Act, Ind. Code Ann. § 24-15-1-1 et seq.; (vii) the Iowa Act Relating to Consumer Data Protection, Senate File 262 (2023); (viii) Kentucky Consumer Data Protection Act, KRS Chapter 367; (ix) Maryland Online Data Privacy Act, MD. Code, Com. § 14-4701 et seq.; (x) Minnesota Consumer Data Privacy Act, Minn. Stat. § 325O et seq,; (xi) Montana Consumer Data Privacy Act, Mont. Code § 30-14-2801 et seq.; (xii) Nebraska Data Privacy Act, Nebraska Act L.B. 1074; (xiii) New Hampshire Expectation of Privacy Act, RSA 507-H et. seq.; (xiv) New Jersey Data Privacy Act, New Jersey Act SB 332; (xv) Oregon Act Relating to Protections for Personal Data of Consumers; (xvi) Rhode Island Data Transparency and Privacy Protection Act, Rhode Island Act 6-48.1-1. et seq.; (xvii) Tennessee Information Privacy Act, Tenn. Code Ann. 47-18-3301 et seq.; (xviii) Texas Data Privacy and Security Act, Tex. Bus. & Com. Code § 541.001 et seq.; (xix) the Utah Consumer Privacy Act, Utah Code 13-61-101 et seq.; (xx) the Virginia Consumer Data Protection Act, Code of Virginia title 59.1, Chapter 52; ("US State Privacy Laws") and guidance issued by the U.S. Federal Trade Commission pursuant to its authority under Section 5 of the FTC Act, taking into account, for example, the type of data, practices, industries and territories relevant to the Agreement; and any other applicable federal or state laws or regulations regarding information privacy that are in effect or will come into effect during the term of the Agreement.
2.2. "Controller / Business" Shall have the meaning given to it in GDPR (Controller) and includes a "Business" as defined in the CCPA/CPRA (the entity that determines the purposes and means of processing Personal Information).
2.3. "Personal Information (PI) / Personal Data" Means any information relating to an identified or identifiable person Processed pursuant to the Agreement, and includes Personally Identifiable Information (PII) and Sensitive Personal Information (SPI).
2.4. "Processor / Service Provider" Shall have the meaning given to it in US State Privacy Laws (Processor) and includes a "Service Provider" or "Contractor" as defined in the CCPA/CPRA (the entity that processes Personal Information on behalf of a Controller/Business).
2.5. "Sensitive Personal Information (SPI)" Includes, but is not limited to, precise geolocation data and PI revealing racial or ethnic origin, religious beliefs, health status, or citizenship status, as defined under US State Privacy Laws.
2.6. "Territory" means the United States of America.
2.7 "Third Party" Shall have the meaning given to it in the CCPA/CPRA (an entity that is neither the business receiving the PI nor the service provider/contractor, often purchasing or receiving PI for its own purposes).
Other defined terms in this DPA, not listed in this definitions section, shall have the meanings as defined under Applicable US State Privacy Laws, such as "Targeted Advertising" or its equivalent, or as defined under the Client Agreement, such as "Services".
3.1. The Client (Controller) warrants and ensures that any Personal Information provided to Company has been collected, processed, and disclosed to Company in accordance with Applicable Privacy Laws (including obtaining all necessary consumer notices, opt-outs, opt-ins and consents) to permit Company to process the PI for the purposes of the Agreement, regardless of whether Company is acting as a Processor or as a Controller/Third Party in relation to that transfer.
When Company acts solely as a Processor (Service Provider) for the Client's PI (data provided for the CDP service), Company agrees to the following mandates:
4.1. No Unauthorized Use/Sale/Share. The Processor is expressly prohibited from Selling or Sharing the Client's PI.
4.2. No Profiling Augmentation. The Processor shall not retain, use, or disclose PI to build or augment a consumer or household profile for its own commercial purposes outside of the direct service relationship with the Client.
4.3. No Commercial Purpose. The Processor shall not retain, use, or disclose PI for any commercial purpose other than providing the specified Services (e.g., CDP management) on behalf of the Client.
4.4. Data Subject Requests. The Processor shall redirect any consumer requests (Right to Delete, Access, etc.) received by Company to the Client and comply with all reasonable requests from the Client to assist with the Client's response.
4.5. Deletion on Termination. Upon termination, the Processor shall, at the choice of the Client, either delete all PI or return all PI to the Client and delete existing copies (unless retention is required by law).
4.6. Processor Certification. Company certifies that, to the best of its knowledge and belief, it understands its obligations under the Applicable Privacy Laws in the Territory and will provide the same level of privacy protection to the Client's PI as is required by those laws.
4.7. Data Privacy Contact. Company confirms it has a designated Data Protection Officer or equivalent employee available to help the Client with privacy enquiries.
When Company provides its proprietary segments, identity resolution, or enriched data (e.g., Lead Location data) to the Client, Company is acting as a Controller/Third Party and warrants the following:
5.1. Lawful Sharing/Sale. Company warrants that, to the best of its knowledge and belief, any PI Sold or Shared with the Client has been collected and transferred in compliance with Applicable Privacy Laws, including the consumer's explicit right to opt-out or opt-in as applicable.
5.2. Data Partner Contractual Restriction. Company contractually requires its data partners to refrain from sharing Personal Data or Sensitive Personal Information unless such sharing is permitted and is in accordance with Applicable Privacy Laws and for the purposes defined under the Agreement.
5.3. Notice and Opt-Out. Company provides a clear and conspicuous mechanism on its consumer-facing notices for consumers to exercise their Right to Opt-Out of the Sale/Sharing of PI for Targeted Advertising and the Right to Limit the Use of Sensitive Personal Information.
5.4. Client Responsibility. The Client (as the recipient Third Party/Controller) is solely responsible for ensuring its subsequent use of the PI is consistent with the initial consumer notice provided by Company and complies with all Applicable Privacy Laws.
These clauses apply to all processing activities conducted by Company under the Agreement.
6.1. Security. Company shall implement and maintain appropriate technical and organizational security measures to protect the Personal Data against accidental loss, unauthorized access, or destruction.
6.2. Breach Notification. Company shall notify the Client of a Personal Data Breach without undue delay, and in any event within seventy-two (72) hours of becoming aware of the breach, providing reasonable detail to assist the Client. The Client shall make the final decision on notifying Data Subjects.
6.3. Subprocessor Authorization. The Client generally authorizes Company to engage subprocessors. Company shall maintain an up-to-date list of subprocessors (Attachment A) and shall notify the Client of any intended additions or replacements. Company remains responsible for ensuring the Sub-processors comply with the terms of this DPA.
6.4. Audit Rights. Company shall permit the Client to monitor Company's compliance with this DPA through regular assessments, audits, or other technical and operational testing at least once every 12 months (subject to reasonable notice and confidentiality).
6.5. Limitation of Liability and Indemnification. The Parties acknowledge and agree that the terms of the Limitation of Liability and Indemnification sections set forth in the main Client Agreement shall apply to this DPA.
6.6. Order of Precedence. In the event of a conflict or inconsistency between the terms of this DPA and the terms of the Client Agreement, the terms of this DPA shall govern and control solely to the extent of such conflict or inconsistency and only with respect to the Processing and protection of Personal Information.
| Category | Description |
|---|---|
| Data Subjects | Consumers who are residents of US states with applicable privacy laws, including website visitors, physical location visitors (via geo-fencing), known customers of the Client, and individuals whose data is maintained in Company's proprietary database. |
| Categories of Personal Information (PI) | Identifiers: Hashed emails, Mobile Ad IDs (MAIDs), IP addresses, Cookies, and system-generated unique identifiers. Sensitive Personal Information (SPI): Precise Geolocation Data (via polygons/wickets and resting place identification). Commercial Information: Customer service history, financing status, vehicle ownership/service records (Client-provided for CDP). Inferences: Profiles reflecting consumer preferences, characteristics, and audience segment membership (e.g., "in-market for a new car"). |
| Nature of Processing | Collection, analysis, matching, linking, segmentation, storage, and transmission of PI, including probabilistic identity resolution, data enrichment, and audience creation. |
| Purpose of Processing | For CDP (Processor Role): To perform identity resolution, segmentation, and activation of the Client's data solely on the Client's behalf for marketing to the Client's customers. For AdTech (Controller Role): To create proprietary audience segments for sale and/or sharing with the Client for Targeted Advertising, attribution, and analytics. |
| Duration of Processing | For the term of the Client Agreement, subject to Section 6.2 (Breach Notification) and Section 4.5 (Deletion on Termination). |
| Company's Data Source Categories | Directly from consumers (via pixels/widgets), Clients/Partners, and Third-Party Data Providers (e.g., co-registration records, public records). |
| Subprocessor Name | Function/Service Provided |
|---|---|
| Sparkpost | Email Deployment |
| Txt180 | Texting Platform |
| Digital Ocean | Servers and Databases |