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Global Reseller Customer Terms of Use

Last updated: December 1, 2023

These Reseller Customer Terms of Use (these “TOUs”) govern a reseller customer’s (“Customer”) use of TD’s (as defined below) Platform and Services. Customer is only entitled to access and use TD’s Platform and Services pursuant to a separate agreement (the “Customer Agreement”) Customer has entered into with an unrelated third-party that has been authorized by TD to grant such access and use of TD’s Platform and Services (“Reseller”). These TOUs are in addition to any restrictions set forth in the Customer Agreement and form a direct agreement between TD and Customer. By using TD’s Platform and Services, Customer shall be bound to the terms and conditions set forth in these TOUs directly with TD. Customer represents that Customer has all necessary rights and authorizations to enter into these TOUs. References to “TD” in these TOUs shall refer to the contracting entity specified in Section 13.

CERTAIN DEFINITIONS.

1.1 “Audience Tools” means the functionality provided in the Platform that enables advertising campaigns to be targeted to particular types of users (e.g., avid golfers). Audience Tools may utilize audience data provided by Customer (i.e., first party data), third parties (e.g., BlueKai) or TD.

1.2 “Directly Identifying Information” means data that directly identifies or reasonably can be used to directly identify an individual, including name, raw (unhashed) email address, postal address, phone number, or government identifier. For the avoidance of doubt, Directly Identifying Information does not include (i) cookie identifiers; (ii) advertising identifiers assigned by mobile devices; (iii) IP addresses; (iv) other forms of device identifiers generally accepted for use in relation to advertising; and (v) demographic, interest, or browsing behavior data associated with such identifiers.

1.3 “Inventory Partners” means the third parties who make inventory available for purchase through the Platform.

1.4 “Platform” means the TD hosted software platform (including, the Walmart DSP Platform (defined below), if applicable) including Audience Tools and other functionality.

1.5 “Reseller” means the entity that has contracted directly with TD to resell the right to access and use the Platform and Services to customers and the entity that has contracted directly with Customer for such right to access and use the Platform and Services.

1.6 “Services” means the services and functionality provided by the Platform, any campaign management services, tags and pixels, APIs, and any other services provided by TD from time to time, including the Walmart DSP Services (defined below), if applicable.

1.7 “Sites” includes websites, apps, video or audio programs, or other content and media from which ad inventory is made available by Inventory Partners or from which data is collected or used in association with the Services.

SERVICES.

2.1 Self-Serve Usage. Subject to these TOUs and as long as (a) Customer is not in breach of its obligations to TD or Reseller, and (b) Customer is at all times a reseller client of an active and authorized Reseller, TD grants Customer a non-exclusive, non-transferable right to access and use the Platform on a self-serve basis solely to purchase advertising for its or any third party on whose behalf Customer is acting (each a “Client”) advertising campaigns. Customer will obtain and maintain throughout the term of its use of the Platform or Services (and hereby grants to TD) all rights and permissions reasonably necessary to buy inventory on Customer’s behalf (and on behalf of any Client), perform tracking and analytics, and store and serve ads. To the extent that either Customer or Reseller requests TD’s help to use the Services on Customer’s behalf, Customer consents to the actions that TD performs on its behalf. Customer retains sole responsibility for such assisted use of the Services. Customer shall remain responsible for all acts or omissions of its Clients, including any advertising or advertising campaigns. Any fees charged for use of TD’s Services and Platform will be set forth in the Customer Agreement, or otherwise set, between Reseller and Customer.

2.2 Reporting. Customer will have access to TD’s online reporting interface. All information from the interface is solely for the internal use of Reseller, Customer and its Clients.

2.3 Audience Tools. Fees charged by TD for use of Audience Tools will be as shown in the Platform or agreed in advance in writing. Customer may use the Audience Tools solely for the purpose of managing campaigns through the Platform and shall not attempt to extract or recreate the data underlying the Audience Tools or assemble similar data or audience segments itself (directly or indirectly through a third party). Fees shown in the Platform may not necessarily reflect the full cost of fees charged by Reseller for Customer’s use of TD’s Services.

2.4 Beta Features. TD may offer to Customer the right to use certain experimental features from time to time (“Beta Features”). All Beta Features are provided on an “as is” and “as available” basis, without any representations, warranties, covenants or obligations of any kind, and may be terminated by TD at any time. Any use by Customer of Beta Features is solely at Customer’s own risk.

2.5 Direct Bill to Customer by Inventory Partner. Customer shall not enter into any arrangement where Customer pays an Inventory Partner directly for the cost of such Inventory Partner’s ad inventory that is purchased by or on behalf of Customer through TD’s Platform.

2.6 Ad Tags. If Customer uses the TD ad server, Customer will ensure that it inputs ad tags so that they are functional. Each ad tag may relate to one advertiser only (but can be related to multiple ads/​creative for that advertiser).

2.7 Connected TV. Purchases of connected TV inventory may be subject to additional terms and conditions, which TD will provide to Customer in writing (email sufficing). Creatives intended to be served on connected TV inventory must be provided to TD at least two full business days in advance of any campaign launch.

2.8 Additional Features and Services. TD may roll out additional features or services from time to time, which may require additional fees and terms and conditions as set forth in the Platform or by separate agreement between the parties.

2.9 Third Party Access. Customer is responsible for all activity under its account, including maintaining the confidentiality of its account logins and passwords and ensuring that all reporting and data usage complies with these TOUs. Customer acknowledges and agrees that Reseller will have full access to Customer’s account, data or reporting (via the Platform or otherwise). Customer may request in writing or via the Platform that TD approve and grant access to its account, data, or reporting (via the Platform, APIs or otherwise) (collectively, “Account Access”) to certain third parties. TD reserves the right to reject Account Access to any third parties. TD approved third parties are collectively referred to herein as “Third Parties.” Customer shall ensure that all Third Parties (a) use Customer’s account information solely for Customer’s benefit and solely as required to provide services to Customer (or if such Third Party is a Client, then for such Client’s internal use) and for no other purpose, and (b) are aware of, and comply with, all restrictions for use of the Services, Platform, and data described in these TOUs. Customer shall be liable for any breach of these TOUs by any Third Party, as if Customer committed such breach itself. Additional terms, conditions, and fees for Account Access may apply.

3. RESTRICTIONS. Customer will use the Services only for its own use or for a Client or for a direct agent with which Customer has a direct relationship. Customer will not directly or indirectly (a) circumvent or attempt to circumvent any TD security measure or interfere with or attempt to interfere with the proper functioning or performance of the Platform or Services, (b) share any of its Platform login credentials with, or otherwise grant access to the Platform or Services to, any third party without express notification to and approval by TD in compliance with Section 2.9, © reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble any TD-provided tag, the Platform, Audience Tools (other than Customer Data), or any portion thereof, except to the extent permitted by applicable law, and provided always that any information obtained by Customer as a result of any such acts is (i) used only as permitted by applicable law for the purpose of achieving inter-operability between the Platform software and other software; (ii) not disclosed to a third party without TD’s prior written consent; and (iii) is not used to create any software that is similar to the Platform software, (d) use or authorize the use of the Platform or Services for any purpose not permitted under these TOUs, (e) copy, sell, transfer, lease, lend, syndicate, or sub-syndicate the Platform or any Service, or use the Platform or Services for co-branding, timesharing, arbitrage (e.g., reselling), service bureau or other unauthorized purposes, (f) utilize rotating ad tags or otherwise violate the Ad Standards, (g) violate the provisions in Section 6, (h) distribute viruses or other malware (through the ads or any other mechanism), (i) create targeting profiles or segments on the basis of the publisher Sites that a user has visited, the content on the publisher’s page or site, or the general interest area(s) covered by the publisher (e.g., Customer may not create an “ESPN Audience” segment based on any information obtained during a prior campaign on ESPN properties), (j) use the Platform or Services for gathering competitive intelligence, (k) create an activated Ad Group (which is a feature of the Platform that specifies the targeting strategy for a campaign) that spend less than $1.00 per day, or (l) enter into these TOUs if Customer’s representative is not of legal age to form a binding contract with TD and/​or Reseller or a person or entity barred from using the Platform or Services under the laws of the United States or other countries, including the country in which Customer is a resident or from which Customer uses the Platform or Services. TD may immediately suspend Customer’s access or terminate these TOUs upon its reasonable belief that Customer has breached any provision of this Section 3. In the event that Customer’s breach of this Section 3 is attributable to its intentional misconduct or gross negligence and results in a termination or suspension of TD’s ability to conduct business with a third party partner (e.g., an Inventory Partner), without limiting any rights or remedies available to TD and notwithstanding any other provision in these TOUs to the contrary, Customer shall be liable to TD for all lost profits and other damages resulting from such suspension or termination.

4. COUNTING. TD will have sole responsibility for calculating and reporting metrics on media or data bought and sold through the Platform and such metrics shall be used for calculating payments. TD will make such metrics available to Customer through the Platform. TD may update numbers if there is delay in reporting affecting month-end invoicing.

5. OWNERSHIP AND DATA USAGE.

5.1 Customer Data. As between TD and Customer, Customer owns all right, title and interest in (a) all data Customer imports into the Platform, including but not limited to information about advertising campaigns and Customer’s account (“Customer Data”), and (b) the ads Customer provides. TD may use Customer Data solely to provide the Services available under these TOUs.

5.2 TD Data. As between TD and Customer, TD owns all right, title and interest in (a) the data residing in the Platform and Services that does not constitute Customer Data, Business and Campaign Data (defined below) or third party data underlying the Audience Tools (“TD Data”) and (b) the Services. Customer may use TD Data solely in connection with its use of the Platform and Services.

5.3 Business and Campaign Data. Each party may use the data generated by Customer’s use of the Services (“Business and Campaign Data”) as follows. Customer may use Business and Campaign Data for any internal business purpose provided that (a) it complies with its privacy policy, (b) it complies with the terms of these TOUs, and © it does not disclose data that describes or reflects the performance of the Platform (or any other Services), or any publisher or Inventory Partner, to other parties except Customer’s Third Party service providers who are under confidentiality restrictions, and subject to the terms of these TOUs. TD may use Business and Campaign Data (i) to provide the Services, (ii) internally for any other business purpose (e.g., fraud detection or financial reporting), and (iii) externally if such data is aggregated with other data such that third parties cannot attribute the data to Customer (e.g., publishing industry trends on average CPMs). Customer acknowledges that Inventory Partners and their publishers have access to Customer Data and other information in connection with the purchase of their inventory.

5.4 Feedback. Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by Customer to TD relating to TD’s business, the Platform, the Services or any other services or products of TD (collectively, “Feedback”) are provided voluntarily. Customer agrees that all Feedback shall be owned by TD and may be used by TD without compensation, accounting or attribution to Customer.

5.5 Reservation of Rights. Aside from the rights granted herein, TD does not grant Customer any other right, express or implied, and TD reserves all rights not expressly granted hereunder.

6. USER PRIVACY.

6.1 Each party will take measures to ensure that users are provided User Notice on Sites where data is collected and used in association with the Services. Each party will have, and will make commercially reasonable efforts to contractually obligate their partners who may provide or use data in association with the Services (i.e. advertisers and other demand partners of Customer, and Inventory Partners of TD) to have, User Notice included in a clear and conspicuous privacy notice available prominently from its Site. “User Notice” means (a) a description of the collection and use of data from and about users for advertising purposes by third parties such as TD, and (b) access to an opt in or opt out choice with respect to such data collection that applies to TD, including with respect to cookies and similar technologies as is required by law or otherwise in accordance with industry self-regulatory principles. Each party will take reasonable steps to ensure that all User Notices accurately describe data collection and use associated with Customer’s use of the Services and, at minimum, include the information required and meet the standards for notice to users set by the Network Advertising Initiative (“NAI”) in the NAI Code of Conduct and associated guidance, including as relevant to the circumstances, the guidance on Viewed Content Advertising, Cross-Device, Non-Cookie Technologies, and any superseding, additional, or supplementary guidance (“NAI Code”) in the US; or, (ii) described in TD’s Notice and Choice Guidelines located in the TD Wiki (or successor URL) anywhere else in the world. Additionally, each party will follow the requirements of the applicable local self-regulatory program such as the DAA Self-Governing Principles in the US (currently found at aboutads​.info), the EDAA European Principles (currently found at edaa​.eu) in Europe, or the DAAC principles (currently found at yourad​choic​es​.ca) in Canada.

6.2 Without limiting Customer’s obligations under any applicable law, Customer shall not cause TD or the Platform to process or target personalized ads on the basis of: (a) any information regarding an individual user’s specific health condition or any information or inference regarding health that would be considered sensitive under: (i) the NAI Code in the US, or (ii) any applicable self-regulatory program, regulation or law anywhere else in the world; (b) any information associated with a persistent identifier that is: (i) from or about individuals Customer knows or should know are children (children being individuals less than the age at which targeted personalized ads are permitted as defined by law in any applicable jurisdiction, but in no event lower than 13 years of age), (ii) any information from inventory that Customer knows or should know is directed to children, or (iii) any user or audience segments directed at or identifying children; © any Directly Identifying Information; or (d) any other information that would be considered protected, sensitive, special, or similar under applicable local law or local self-regulatory program, such as PHI as defined under the Health Insurance Portability and Accountability Act of 1996. Customer shall not combine any TD Data or Business and Campaign Data with any Directly Identifying Information or use any TD Data or Business and Campaign Data to, or attempt to, directly identify an individual. Customer shall not use the Platform or any TD Data or Business and Campaign Data for any non-marketing purposes, including without limitation decisions relating to eligibility for, or pricing of, employment, credit, health care, insurance, housing, or education. TD may restrict the data that it allows or makes available on the Platform in its reasonable discretion to protect user privacy.

6.3 For any data that Customer or its Clients collect using the Platform or upload into the Platform, or direct to be collected or uploaded, such as by using Platform features like pixels, tags, cookies, or APIs, Customer will ensure that all necessary rights and permissions are established for the use of such data in the Platform and in association with the Services, and that such use of the data is strictly in compliance with all applicable laws and applicable self-regulatory requirements. If Customer implements the Campaign Analytics Code, User Notice must be included on the Sites where the Code is used and must identify TD specifically.

6.4 The parties agree that certain jurisdictions may impose data privacy requirements that are additional to those contained in these TOUs. To the extent that TD processes data on Customer’s behalf that is from or about individuals in regions where these additional requirements are prescribed, the parties hereby agree to abide by and be bound by the data privacy terms and conditions set forth in Exhibit A hereto, as such may be updated from time to time and shall be incorporated herein by reference.

6.5 If Customer becomes aware that it or Reseller on its behalf provided to TD or caused TD to process any information in breach of this Section 6, Customer shall, at Customer’s sole cost, immediately notify TD and Reseller in writing and take all necessary steps to assist TD in responding to the breach by removing the data and doing anything else necessary to come into compliance. TD may immediately suspend any of Customer’s use of the Platform or Services if TD reasonably determines that Customer has provided to TD or caused TD to process any information in breach of this Section 6.

7. COMPLIANCE.

7.1 Each party will comply with all applicable laws, rules, regulations and government guidance (TD in its provision of the Platform and Services in the form provided, and Customer as to the ads it provides and its use of the Platform and the Services), which shall include, for purposes of clarification and not of limitation, Federal Trade Commission guidance on sponsorships and native advertising and, if applicable, Federal Communication Commission rules, regulations and guidelines. Customer will comply with TD’s Reseller Ad Content Guidelines located in located in the TD Wiki (or successor URL), TD’s security requirements and any applicable Inventory Partner ad standards and technical requirements (all of the foregoing, “Ad Standards”). To the extent Ad Standards conflict with terms in these TOUs, the Ad Standards shall govern. Customer will not use the Platform in connection with any ads (or the targeting thereof) or other digital content that are obscene or pornographic; depict illegal activity; violate any law, regulation or third party right (including intellectual property and privacy rights); or that are deceptive or defamatory. TD or Reseller may immediately reject ads, suspend any campaign, or suspend Customer’s use of the Platform and Services if TD or Reseller reasonably determines that Customer is in violation of any of the foregoing. All information provided by Customer to Reseller or TD regarding itself and its Clients (including its and their identity and operations), ads and ad campaigns shall be truthful and correct.

7.2 The Platform (or portions thereof) may be subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside the U.S. Customer shall abide by all applicable export control laws, rules and regulations applicable to the Platform. Customer agrees that it will not export, re-export, or transfer the Platform, in whole or in part, to any country, person, or entity subject to U.S. export restrictions.

8. TERMINATION/SUSPENSION. In addition to any other termination or suspension rights otherwise set forth in these TOUs or Customer Agreement, TD may terminate Customer’s use of TD’s Platform or Services immediately (a) upon notice for breach of these TOUs; (b) upon notice for a breach by Reseller of its payment obligations to TD with respect to any amounts due under Customer’s account; or © upon termination or expiration of Reseller’s agreement with TD. TD is under no obligation to provide Customer access to the Platform or any Services following the termination or expiration of Reseller’s agreement with TD. Additionally, TD may suspend access to the Platform and use of the Services if TD reasonably believes that Customer’s continuing use of the Platform or Services may cause risk of litigation or otherwise be harmful to TD. In no case will any termination or suspension pursuant to these TOUs or Customer Agreement give rise to any liability of TD to Customer for any damages.

9. DISCLAIMER. THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTIES, REPRESENTATIONS, OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND TD EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. TD DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE BENEFITS TO CUSTOMER FROM THE PLATFORM, OR THAT THE PLATFORM OR ANY INFORMATION PROVIDED BY INVENTORY PARTNERS AND/OR DATA PROVIDERS WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION.

10. LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TD OR ANY TD AFFILIATE HAVE ANY LIABILITY TO CUSTOMER UNDER ANY THEORY OF LIABILITY FOR ANY DAMAGES RELATED TO OR ARISING FROM CUSTOMER’S USE OF TD’S PLATFORM OR SERVICES PURSUANT TO THESE TOUS OR THE CUSTOMER AGREEMENT, INCLUDING, BUT NOT LIMITED TO ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS, LOSS OF BUSINESS OR GOODWILL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

11. Indemnification.

11.1 Customer shall indemnify, defend and hold harmless TD and its directors, officers, employees , agents and affiliates, its and their respective successors, heirs and assigns (collectively, the “Indemnified Parties”) against any claim, liability, damage, loss or expense (including reasonable attorneys’ fees and costs) (“Liabilities”) incurred by the Indemnified Parties in connection with any third party claim arising out of or relating to (a) Customer or any Third Party’s breach of any terms of these TOUs; or (b) any advertisement or other material with which Customer or any Third Party uses on or in connection with the Platform (including the ads, landing pages and other materials of Customer and its Clients). The Indemnified Party will provide Customer with prompt notice of any claim (provided that the failure to promptly notify shall only relieve Customer of its obligation to the extent it can demonstrate material prejudice from such failure) and at Customer’s expense, provide assistance reasonably necessary to defend such claim. Without the Indemnified Party’s prior written consent, Customer shall not enter into any settlement or compromise that (i) would not fully absolve the Indemnified Party of liability; (ii) would contain any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of the Indemnified Party; or (iii) would restrict or limit the Indemnified Party’s business or operations. With respect to any data privacy, or other governmental or regulatory investigation or claim, TD shall have the option to have sole control of the defense and any settlement negotiations at the indemnitor’s expense.

Confidentiality. “Confidential Information” means any information relating to or disclosed in the course of these TOUs, which is or should be reasonably understood to be confidential. Any data regarding the performance of the TD systems and Services is TD Confidential Information. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations under this these TOUs. The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party. Confidential Information does not include information that (a) is or becomes part of the public domain through no fault of the receiving party, (b) was already in possession of the receiving party, or © was independently developed by the receiving party without violation of this Section 12. The receiving party may disclose Confidential Information if required to do so by law, if the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure. Customer shall keep confidential any third party information provided through the Platform (“Third Party Data”), and use such Third Party Data solely for purposes of planning and administering campaigns, including post-campaign analysis. For clarity, Customer may not (i) extract Third Party Data; (ii) disclose, display, copy, transmit, reproduce, or duplicate the Third Party Data for any purposes except as expressly stated in this Section 12; (iii) make any use whatsoever, whether internally or externally and whether for commercial purposes or otherwise, of any Third Party Data or information derived therefrom except through the Platform as permitted in this Section 12; or (iv) rent, sell, sublicense, transfer, grant any rights in, modify, reverse engineer or create derivative works of (including analytics based on, except as described in this Section 12) the Third Party Data.

13. CONTRACTING ENTITY, GOVERNING LAW, JURISDICTION & NOTICES

13.1 If Customer is an entity domiciled inside of the United States of America:

13.1.1 The TD entity that Customer is contracting with under these TOUs is The Trade Desk Inc. and any reference to “TD” hereunder shall be to The Trade Desk Inc.

13.1.2 These TOUs are governed by the laws of the State of California, excluding its conflicts of laws principles.

13.1.3 Any action arising under or related to these TOUs will be resolved in the state or federal courts (and the parties hereby consent to personal jurisdiction therein) in the County of Los Angeles, CA. The prevailing party is entitled to recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorneys’ fees.

13.1.4 If Customer is required to provide any notices to TD hereunder, such notices shall be sent to the following address:

The Trade Desk, Inc.

42 N. Chestnut Street

Ventura, CA 93001

Attention: Chief Legal Officer

Email: Legal@​thetradedesk.​com

13.2 If Customer is an entity domiciled outside of the United States of America:

13.2.1 The TD entity that Customer is contracting with under these TOUs is The UK Trade Desk Ltd. (Co. No. 8539108) and any reference to “TD” hereunder shall be to The UK Trade Desk Ltd.

13.2.2 These TOUs are governed by the laws of England, excluding its conflicts of laws principles. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to these TOUs.

13.2.3 Any action arising under or related to these TOUs will be resolved in the courts (and the parties hereby consent to personal jurisdiction) in London, England. The prevailing party is entitled to recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorneys’ fees. Each party acknowledges that acknowledges that electronic signature provided by it, regardless of the means, shall be a valid electronic signature and that each party, by providing an electronic signature is creating a binding contract. Each party also acknowledges that this contract is being concluded in the United Kingdom.

13.2.4 If Customer is required to provide any notices to TD hereunder, such notices shall be sent to the following address:

The UK Trade Desk Ltd.

c/​o The Trade Desk Inc.

42 N. Chestnut Street

Ventura, CA 93001

Attention: Chief Legal Officer

Email: Legal@​thetradedesk.​com

13.3 If TD is required to provide any notice under these TOUs to Customer, Customer acknowledges that such notice may be provided by the Reseller and any receipt of a notice from Reseller shall constitute a notice hereunder. Notices must be in writing and are effective when (a) delivered personally; (b) received from a nationally-recognized next-day courier service; or © sent by email. If TD provides notice directly to Customer, notices to Customer shall be sent to the primary contact information provided by Customer to Reseller or to Customer’s CEO, CFO, or President. If notice is sent via email by either party hereunder, the sending party must confirm that (x) the email was apparently sent successfully according to its ordinary technical records and (y) the sending party does not receive an error notice. Notwithstanding the foregoing, if the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective if the sending party is using the last email address provided by the other party for the express purpose of receiving notices.

Miscellaneous.

14.1 Customer will not make any public statement relating to these TOUs or Customer’s use of TD’s Services without TD’s prior written approval. TD may include Customer’s name and logo in its marketing, promotional materials and customer lists.

14.2 Unless otherwise expressly set forth in these TOUs or in a supplemental agreement, all supplemental terms and conditions or ancillary agreements entered into between the parties for additional features or services will be subject to the terms of these TOUs. To the extent that the terms of any supplemental terms and conditions, ancillary agreement or the Customer Agreement conflicts with the terms of these TOUs: (i) these TOUs shall govern with respect to the obligations hereunder from Customer to TD and TD’s rights as a direct party to these TOUs; and (ii) the Customer Agreement shall govern with respect to the obligations between Customer and Reseller.

14.3 TD reserves the right to continually evolve the Platform and its Services without notice.

14.4 This is the entire agreement of the parties relating to this subject and it supersedes all other commitments, negotiations and understandings. MODIFICATIONS TO THESE TERMS AND CONDITIONS MAY BE MADE BY TD AT ANY TIME. TD WILL PROVIDE NOTICE TO RESELLER OR TO CUSTOMER BY EMAIL OR A NOTIFICATION POSTED TO CUSTOMER’S PLATFORM ACCOUNT. CUSTOMER AGREES TO THE NEW TERMS AND CONDITIONS BY CONTINUING THE USE OF THE PLATFORM OR SERVICES.

14.5 If any provision of these TOUs is unenforceable, that provision shall be re-interpreted to be as close to the parties’ intent as legally possible and the validity of the remaining provisions will not be affected. Sections 3, 5 – 7, and 9 – 14 will survive expiration or termination.

14.6 TD’s failure or delay to exercise any right will not operate as a waiver, nor will any single or partial exercise of any such right preclude any other exercise or the exercise of any other right, power or remedy.

14.7 TD is not liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure.

15. CUSTOMER/TD AND CUSTOMER /WALMART RELATIONSHIP.

15.1 Customer’s use of Walmart DSP Platform is subject to the terms and conditions below in addition to those stated above.

15.2 “Walmart DSP Platform” means the TD-hosted software platform that is Walmart-branded, including all functionality thereunder. For the avoidance of doubt, if Customer is eligible and authorized to use the Walmart DSP Platform, as between TD and Customer, the Walmart DSP Platform will be considered a “Platform” under these TOUs. 

15.3 “Walmart DSP Services” means the services and functionality provided by the Walmart DSP Platform, any campaign management services, tags and pixels, APIs, and any other services provided by TD or Walmart from time to time. As between TD and Customer, the Walmart DSP Services, if applicable to Customer, will be considered “Services” under these TOUs.

15.4 “Walmart Services” means the Walmart DSP Services that are provided by Walmart and selected on the Walmart DSP Platform user interface to the extent specifically designated as “Walmart” services as distinct from Walmart DSP Services. TD has no obligations or liability and grants no rights to Customer with respect to the Walmart Services.


EXHIBIT A

Data Privacy Terms and Conditions

These Data Privacy Terms and Conditions reflect TD and Customer’s agreement on the terms governing TD’s Processing of Customer Personal Data under the TOUs in regions where Applicable Privacy Law applies and are in addition to any rights or obligations set forth in the TOUs.

DEFINITIONS

1.1 “Advertising Purposes” mean all activities under the TOUs that constitute Targeted Advertising or Cross-Contextual Behavioral Advertising under Applicable Privacy Law in addition to any advertising-related uses that constitute a Business Purpose under Applicable Privacy Law (such as frequency capping, measurement, and fraud detection and prevention).

1.2 ”Applicable Privacy Law” means all applicable privacy and data security laws, including state, federal and extraterritorial or international laws as well as all regulations applicable to the Services being provided under the TOUs. “Applicable Privacy Laws” include, for example, the EU General Data Protection Regulation 2016/679 (“GDPR”) and national laws implementing the GDPR; the GDPR as it forms part of retained EU law in the United Kingdom, as defined in European Union (Withdrawal) Act of 2018, as amended (“UK GDPR”); the EU Privacy and Electronic Communications Directive 2002/58/EC, as implemented; and the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020 (collectively, the “CCPA”), and any statute or regulations promulgated thereunder.

1.3 “Authenticate” means to use reasonable means to determine that a request to exercise Consumer data rights afforded under Applicable Privacy Law is being made by, or on behalf of, the Consumer who is entitled to exercise such Consumer rights with respect to the Personal Data at issue.

1.4 “Auditing Party” means a party chosen by Customer to conduct an audit under this Exhibit.

1.5 “Customer Personal Data” means any Personal Data Processed by TD on behalf of Customer in TD’s provision of Services.

1.6 “Process” or “Processing” means any operation or set of operations that are performed on Customer Personal Data, whether or not by automated means, such as the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of Customer Personal Data.

1.7 “Processing Signal” means any flag or signal mutually agreed by the parties in writing that indicates a Consumer has opted out of the Sale, Share, or Processing for purposes of Targeted Advertising of their Personal Data.

1.8 “Security Incident” means a breach of TD’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data transmitted, stored or otherwise Processed by TD. A “Security Incident” will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

1.9 “Standard Contractual Clauses” means Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as currently set out at https://​eurlex​.europa​.eu/​eli/d… and equivalent clauses for international transfer of data issued by the Information Commissioner for the United Kingdom under S119A(1) Data Protection Act 2018.

1.10 “Subprocessors” means third-parties authorized under this Exhibit to have logical access to and Process Customer Personal Data in order to provide parts of the Services and any related technical support.

The terms “Business”, “Business Purpose”, “Controller”, “Consumer”, “Cross-Contextual Behavioral Advertising”, “Personal Data”, “Processor”, “Sale” or “Sell”, “Service Provider”, “Share” or “Sharing”, “Supervisory Authority”, “Targeted Advertising” and “Third Party” as used in this Exhibit A will have the meanings ascribed to them in Applicable Privacy Law. References in this Exhibit A to “Personal Data” and “Consumer” include “Personal Information” and “Data Subject” respectively.

PROCESSING OF DATA

2.1 Purpose of Processing. The Customer Personal Data is being provided, and TD is Processing the Customer Personal Data, for Advertising Purposes on Customer’s behalf and/​or in furtherance of the provision of the Services noted in the TOUs. Schedule 1 (Scope of Processing) describes the subject matter and details of the Processing of Customer Personal Data.

2.2 Processor and Controller Responsibilities. The parties acknowledge and agree that, except in circumstances where Section 2.10 applies, between TD and Customer: (a) TD is a Processor or the equivalent of Customer Personal Data under Applicable Privacy Law; (b) Customer is a Controller or the equivalent of Customer Personal Data under Applicable Privacy Law; and © each party will comply with the obligations applicable to it under Applicable Privacy Law with respect to the Processing of Customer Personal Data.

2.3 Authorization by Third-Party Controller. If Customer is a Processor to a third-party Controller, Customer warrants to TD that Customer’s instructions and actions with respect to Customer Personal Data, including its appointment of TD as another Processor, have been authorized by the relevant Customer.

2.4 Customer Instructions. Customer instructs TD to Process Customer Personal Data: (a) in accordance with the TOUs; (b) to provide the Services, Platform and any related technical support; © as further specified via Customer’s use of the Services and Platform (including in the settings and other functionality of the Services and Platform) and any related technical support; and (d) to comply with other reasonable instructions provided by Customer where such instructions are consistent with the terms of the TOUs. Customer will ensure that its instructions for the Processing of Personal Data shall comply with Applicable Privacy Law. In the event that Reseller utilizes the Platform on Customer’s behalf, Customer represents and warrants that any instructions for Processing provided by Reseller have been authorised by Customer and Customer acknowledges and agrees that TD will adhere to such instructions as if by they were provided by Customer.

2.5 Customer Processing. Customer may have the ability to take Customer Personal Data from the Platform, including in transaction logs, event feeds, or other mechanisms. Customer hereby acknowledges that it has the responsibility to ensure that it has a legal basis for any Processing of any data that it acquires from the Platform.

2.6 TD’s Compliance With Customer Instructions. TD shall only Process Customer Personal Data in accordance with Customer’s instructions. If TD believes or becomes aware that any of Customer’s instructions conflict with any Applicable Privacy Law, TD shall timely inform Customer. TD may Process Customer Personal Data other than on the instructions of Customer if it is required under applicable law to which TD is subject. In this situation, TD shall inform Customer of such requirement before TD Processes the Customer Personal Data unless prohibited from doing so by applicable law.

2.7 TD Responsibilities. TD will: (a) ensure that its personnel engaged in the Processing of Customer Personal Data have committed themselves to confidentiality obligations; (b) implement appropriate technical and organizational measures to safeguard Customer Personal Data taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons; © upon reasonable request by Customer, make available all information in TD’s possession necessary to demonstrate TD’s compliance with its obligations under Applicable Privacy Law; and (d) taking into account the nature of the Processing and information available to TD, by appropriate technical and organizational measures, insofar as reasonably practicable, assist Customer in meeting its obligations as a Controller under Applicable Privacy Law, provided that Customer will be responsible for costs associated with its compliance.

2.8 Customer Personal Data Provided to TD. Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Personal Data and the means by which Customer obtained the Personal Data.

2.9 Targeted Advertising. Notwithstanding any contrary language regarding Customer’s obligations with respect to Consumer notice and choice set forth in the TOUs, Customer shall ensure that all Consumers whose Personal Data is being disclosed to TD by Customer for Processing for Targeted Advertising or Cross-Contextual Behavioral Advertising have been provided the right to opt-out of Processing of their Personal Data for Targeted Advertising or Sharing for Cross-Contextual Behavioral Advertising, as applicable. Customer shall clearly and conspicuously disclose the nature of the Processing and the method by which a Consumer may exercise the right to opt-out of such Processing as established by Applicable Privacy Law. If a Consumer opts out, Customer will either (i) not transmit Personal Data associated with such Consumer’s opted-out identifier(s) to TD; or (ii) transmit a Processing Signal to TD in a mutually agreed-upon fashion anytime Customer transmits Personal Data associated with such Consumer’s opted-out identifier(s) to TD and TD will Process Customer Personal Data associated with such Consumer’s opted-out identifier(s) solely for those Advertising Purposes that do not constitute Targeted Advertising or Cross-Contextual Behavioral Advertising.

2.10 CCPA Third Party Terms. This Section 2.10 applies only when Personal Data made available under the TOUs (i) is subject to the CCPA; and (ii) is Shared or Sold as defined under the CCPA, including for Cross-Contextual Behavioral Advertising, either by Customer to TD, or by TD to Customer, as applicable:

2.10.1 A party is making Personal Data available to the other, and the party receiving the Personal Data shall only use the Personal Data, for Advertising Purposes;

2.10.2 The receiving party will comply with all applicable sections of the CCPA, including providing the same level of privacy protection to the Personal Data that the disclosing party makes available as is required of the disclosing party under the CCPA;

2.10.3 The disclosing party shall have the right to take mutually agreeable reasonable and appropriate steps (such as, through an attestation) to ensure that the receiving party uses the Personal Data Sold or Shared to it to it in a manner consistent with the disclosing party’s obligations under the CCPA;

2.10.4 The disclosing party shall have the right to, upon reasonable suspicion of noncompliance and prior written notice, take reasonable and appropriate steps to stop and remediate receiving party’s unauthorized use of Personal Data. If the disclosing party reasonably believes that the receiving party is using such Personal Data in an unauthorized manner, the disclosing party can notify the receiving party of such belief and the parties can work together in good faith to stop or, if necessary, remediate the allegedly unauthorized use of Personal Data; and

2.10.5 The receiving party shall notify the disclosing party if it makes a determination that it can no longer meet its obligations under the CCPA with respect to the Personal Data Sold or Shared to it pursuant to this Section 2.10.

2.11 CCPA Service Provider Terms. This Section 2.11 applies only when Customer Personal Data made available under the TOUs (i) is subject to the CCPA; and (ii) the Consumer has opted-out of Customer Selling or Sharing their Personal Data; and (iii) Customer has transmitted such Customer Personal Data with a Processing Signal to TD. In such instances, in addition to the terms set forth in Section 2.10 above, TD will solely Process the Personal Data for Advertising Purposes that constitute a Business Purpose under the CCPA (including Processing for purposes of auditing; security and integrity; debugging; short term, transient uses; and providing advertising or marketing services that do not constitute Cross Contextual Behavioral Advertising or profiling) and such Processing will be subject to the following:

2.11.1 TD will not Sell or Share such Customer Personal Data Customer makes available to it pursuant to the TOUs; and

2.11.2 Except for the purposes set forth in the TOUs or as otherwise permitted for Service Providers under the CCPA, TD will not retain, use or disclose Customer Personal Data that Customer makes available to it outside of the direct business relationship between TD and Customer or any additional purpose (including for any commercial purpose).

DATA SUBJECT RIGHTS

3.1 TD shall provide Customer with commercially reasonable cooperation in fulfilling Customer’s obligations to respond to Consumer requests to exercise Consumer rights under Applicable Privacy Law taking into account (i) the nature of the Processing and the information available to TD, (ii) the timing of the Consumer request; and (iii) the extent to which Customer could respond to such requests itself through its use of, or receipt of or access to data from, the Services. Customer shall be responsible for ensuring adequate Authentication of all Consumer requests.

3.2 TD shall, to the extent legally permitted, promptly notify Customer if it receives a Consumer request specific to Customer to exercise Consumer data rights including rights to access, correct, amend, seek deletion of or objection to the Processing of Customer Personal Data relating to such individual.

SUBPROCESSORS

4.1 General Authorization. Customer agrees that TD may authorize third-parties to Process the Customer Personal Data on its behalf in connection with fulfilling TD’s obligations under the TOUs. The Subprocessors that are currently authorized to access and Process Customer Personal Data are listed here (“Subprocessor List”). This URL may change if TD updates its website or client-facing documentation, in which case you will be notified of the change.

4.2 New Subprocessors. If TD engages a new Subprocessor, TD will notify Customer by updating its Subprocessor List, informing Customer of the change, and giving Customer the opportunity to object to such Subprocessor. If, within 30 days of receipt of that notice, Customer notifies TD in writing of any objections (on reasonable grounds) to the proposed addition, the parties will work together to find a mutually agreeable solution. If no mutually agreeable solution is achieved, Customer may immediately terminate the TOUs, subject to all applicable provisions in the TOUs. TD will contractually impose data protection obligations on its Subprocessors that are at least equivalent to those data protection obligations imposed on TD under this Exhibit.

4.3 TD Liability. TD will remain liable for the acts and omissions of its Subprocessors to the same extent TD would be liable if performing the services of each Subprocessor directly under the terms of this Exhibit.

DATA TRANSFERS

5.1 General Authorization. Customer acknowledges and agrees that Customer Personal Data may be processed in jurisdictions other than the jurisdiction in which it was collected, including the United States, provided that all transfers are compliant with the provisions on the transfer of Personal Data to third countries in accordance with Applicable Privacy Law such as, if necessary pursuant to transfers of Personal Data outside of the EEA, UK and Switzerland, the Standard Contractual Clauses.

SECURITY INCIDENT

6.1 Notification Obligations. In the event TD becomes aware of any Security Incident that triggers the consumer and/​or regulatory reporting requirements under Applicable Privacy Law, TD will notify Customer of the Security Incident without undue delay. TD shall not be liable for Security Incidents to the extent they are caused by Customer or Customer’s personnel or end users.

6.2 Manner of Notification. Notification(s) of Security Incidents, if any, will be delivered to one or more of Customer’s business, technical or administrative contacts by any means TD selects, including via email. It is Customer’s sole responsibility to ensure it maintains accurate contact information on TD’s support systems at all times.

6.3 No Admission. TD’s notification of or response to a Security Incident under this Section will not be construed as an acknowledgement by TD of any fault or liability with respect to the Security Incident.

TERM; DESTRUCTION OF CUSTOMER PERSONAL DATA

7.1 Term of Exhibit. This Exhibit will remain in full force and effect so long as the TOUs remain in effect and for a commercially reasonable time thereafter while TD winds down and ceases its processing of Customer Personal Data.

7.2 Destruction of Customer Personal Data. Prior to the termination of the TOUs, upon Customer’s reasonable request to delete Customer Personal Data, TD will facilitate such deletion, insofar as possible taking into account the nature and functionality of the Services and unless Applicable Privacy Law requires storage. Upon termination of the TOUs and within thirty (30) days from the termination of the TOUs (unless a longer period is agreed in writing by the parties), TD will (a) cease all Processing of Customer Personal Data; and (b) return to Customer or destroy all Customer Personal Data, except to the extent that TD is required under Applicable Privacy Law to keep a copy of the Customer Personal Data. After such thirty (30) day period, TD has no obligation to retain any Customer Personal Data, unless required by Applicable Privacy Law.

Demonstrating Compliance

8.1 Audits. TD will allow an Auditing Party to conduct audits solely as necessary to fulfill Customer’s obligations under Applicable Privacy Law no more than once yearly. TD may object to any Auditing Party on the basis of TD’s reasonable opinion that the Auditing Party is not suitably qualified or independent, is a competitor of TD, or is otherwise manifestly unsuitable, in which case Customer will appoint another Auditing Party. After receipt by TD of a request for an audit from Customer, TD and Customer will discuss and agree in advance on the Auditing Party, a reasonable start date of no less than four (4) weeks from TD’s receipt of the request for such audit, the scope and duration of, and the data protection controls applicable to, the audit. The audit must be conducted during regular business hours, subject to TD’s policies, and may not unreasonably interfere with TD’s business activities. Any audits are at Customer’s sole cost and expense. TD may charge a fee based on TD’s reasonable, non-deminimis costs for the audit.

8.2 Notification of Non-Compliance. Customer shall promptly notify TD with information regarding any non-compliance discovered during the course of an audit.

8.3 Limits on Auditing Party. Nothing in the TOUs will require TD either to disclose to an Auditing Party or Customer, or to allow an Auditing Party or Customer to access: (i) any data of any other customer of TD; (ii) TD’s internal accounting or financial information; (iii) any trade secret of TD; (iv) any premises or equipment not controlled by TD; or (v) any information that, in TD’s reasonable opinion, could: (A) compromise the security of TD’s systems or premises; (B) cause TD to breach its obligations under Applicable Privacy Law or the rights of any third party, or © any information that an Auditing Party seeks to access for any reason other than the good faith fulfillment of Customer’s obligations under Applicable Privacy Law. Customer shall contractually impose, and designate TD as a third-party beneficiary of, contractual terms that prohibit any Auditing Party from disclosing the existence, nature, or results of any audit to any party other than Customer or TD unless such disclosure is required by applicable law.

PARTIES

9.1 Parties to this Exhibit. Nothing in this Exhibit shall confer any benefits or rights on any person or entity other than TD and Customer.

Schedule 1

Scope of Processing

1. Subject Matter of the Processing of Customer Personal Data

TD will Process Customer Personal Data of Consumers for Advertising Purposes and to perform the Services under the TOUs.

2. Duration of the Processing of Customer Personal Data

TD will Process Customer Personal Data until the expiration or termination of the TOUs, unless prohibited by Applicable Privacy Law or as otherwise set forth in the Exhibit.

3. Nature and Purpose of the Processing of Customer Personal Data

The nature and purpose of the Processing of Customer Personal Data will be to Process for Advertising Purposes and to perform the Services under the TOUs.

4. Types of Customer Personal Data

The types of Customer Personal Data Processed by TD for the purposes of the TOUs may include the following:

IP addresses;

Device identifiers;

Cookie identifiers;

UID2s;

Advertising identifiers;

Other online identifiers;

Precise location information;

Web browsing, interest, and demographic data associated with online identifiers; and

Other Customer Personal Data that Customer authorizes TD to Process under the TOUs.

5. Categories of Consumers

The categories of Consumers about whom TD will Process Customer Personal Data include:

Customer’s customers,

End users of Customer’s websites, mobile applications, and/​or other online properties, and

End users who receive or interact with advertisements served by Customer or eligible for advertisements from Customer.