1. Definitions

(a) “Customer Propert(ies)” means each website owned and operated by Customer from which Cookie Data is collected. (b) “Cookie Data” means information collected from Customer Properties by Company (or by a vendor to or partner of Company) in order for Customer to receive the Services. (c) “Input Data” means any and all customer information that Customer provides or makes available to Company in order to receive the Services.  “Input Data” includes Cookie Data. (d) “Output Data” means any data that Company provides to Customer.

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2. Proprietary Rights

All Output Data and technology and data and technology used to create and deliver it shall remain the exclusive property of Company. The Input Data shall remain the exclusive property of Customer; for avoidance of doubt, Company shall have no rights to use, model or create any product with the Input Data except to provide the Services.

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3. Data Usage

Without limitation of the foregoing, Company shall only use the Input Data as set forth herein or as otherwise requested by Customer. Without limitation of the foregoing, Customer shall not use the Output Data or any other portion of the Services in violation, or to facilitate the violation, of any law, regulation or agreement to which it is a party, including, without limitation and to the extent applicable, the California Consumer Privacy Act (CCPA), California Privacy Rights Act (CPRA), the General Data Protection Regulation (Regulation (EU) 2016/679) (to the extent applicable), and the Fair Credit Reporting Act (FCRA) the Can-Spam Act.  Customer further represents and warrants that it shall in a legally sufficient manner disclose how it collect and employs the personal information it handles, including with respect to the Input Data and Output Data, and that it shall not use the Output Data in any manner that violates its own privacy policy or applicable laws.  Any party that accepts and enters into this Agreement on behalf of Customer represents and warrants that such party has the authority, the rights, and the capacity to legally bind Customer to the terms herein.

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4. Restrictions

The Output Data may be used solely for Customer’s own internal business or marketing purposes. Customer may not sell, lease, sublicense, rent or provide to any other party the Output Data (in whole or in part) or a functionally equivalent derivative of the Output Data, or create any service from the Output Data (the “Resale Restriction”). If Customer wishes to resell the Services or the Output Data, Customer may contact Company, and any such resale or relicensing shall be negotiated under a separate agreement.  Customer shall not use the Services (including, without limitation any Output Data) to advertise, sell, or promote products or services relating to or promoting: (i) libelous speech, (ii) illegal activities, (iii) pornography, (iv) tobacco products (including e-cigarette products), (v) weapons, including firearms of any type or ammunition, (vi) hate speech, directed against any societal group, including where based on race, ethnicity, religion, heritage, sexual orientation, gender status or nation of origin, (vii) products that violate copyrights or trademarks, (viii) credit repair products, (ix) the sale of particular “pink slip” or over-the-counter stocks, (x) the sale of “psychic” or “astrology” services, or promotion of sweepstakes, or (xi) any product or service that is illegal in the place in which it is offered or delivered. Customer shall not send emails using the Services (including, without limitation, any Output Data) unless such emails contain and respect a valid and working “unsubscribe” from sender option, identifies the sender as required under the Can-Spam Act, and is non-fraudulent. Should Company provide wireless phone numbers to Customer, Customer shall be solely responsible for compliance with all laws related to the use of such phone numbers, including without limitation (a) the Telephone Communication Protection Act (TCPA), (b) the FTC Telemarketing Sales Rule, (c) the Telemarketing Consumer Fraud and Abuse Prevention Act, and (d) all federal state laws and regulations regarding the use of telephone numbers, including compliance with state and federal “do not call” registries and restrictions. Customer represents and warrants that the Input Data does not and will not contain any information subject to (a) HIPAA (the Health Insurance Portability and Accountability Act), (b) GLBA (the Gramm Leach Bliley Act), (c) COPPA (the Children’s Online Privacy Protection Act) (d) GDPR (the General Data Protection Regulation) or (e) FCRA (the Fair Credit Reporting Act), absent further agreement and implementation of necessary documentation by the Parties.  For avoidance of doubt, the foregoing restriction includes (without limitation) Customer’s placement of a pixel tag (to generate Cookie Data) on a site, where doing so would render such Cookie Data subject to the foregoing laws. Company shall act solely as a “service provider” or “processor” under respective and applicable state laws.

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5. Privacy Policy

Customer shall clearly and conspicuously maintain on each of the Customer Properties privacy notices that (i) comply with all applicable privacy laws; (ii) provide an adequate description of the manner in which online behavioral data from visitors to the Customer Properties (including data regarding website visits) is used, collected, and shared in order to facilitate the applicable Services; and (iii) provide a manner for website visitors to opt-out of the Services, including a link to the opt-out located at https://app.getemails.com/optout.  In some jurisdictions, a web banner may also be required or recommended as a means to provide additional, robust notice.  Customer acknowledges that Company recommends the following disclosure (or substantively similar language) for insertion in Customer’s online privacy policy and/or any such notice banner: 

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“When you visit or log in to our website, cookies  and similar technologies may be used by our online data partners or vendors to associate these activities with other personal information they or others have about you, including by association with your email or online profiles.  We (or service providers on our behalf) may then send communications and marketing to these emails or profiles.  You may opt out of receiving this advertising by visiting https://app.retention.com/optout”.

The above is without qualification or limitation of any other other required legal disclosures Customer may be required to make. Company may provide notice of additional recommended policies or language athttps://retention.com/support/update-privacy-policy/, and by email notice. Notwithstanding any recommendations provided by Company (including the above), Customer understands that Customer has sole responsibility for ensuring that its privacy disclosures are sufficient and complete, and that it should consult with its own privacy counsel regarding implementation and disclosure of data and marketing practices including the Services

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6. Important FCRA Restrictions

Customer is not a consumer-reporting agency as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA") and the Services (including the Output Data and any reports comprising a part of the Services) do not constitute “Consumer Reports,” as that term is defined in the FCRA. Customer will not use or provide the Services (including, without limitation, the Output Data) for any purposes enumerated in the FCRA in lieu of obtaining a Consumer Report, which shall include without limitation, the following uses: (i) in connection with establishing a consumer’s eligibility for credit or insurance to be used primarily for personal, family or household purposes, or in connection with assessing risks associated with existing credit obligations of a consumer; (ii) for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee; (iii) for any tenancy verification or in connection with any application to rent real property; (iv) in connection with a determination of a consumer’s eligibility for a license or other benefit that depends on an applicant's financial responsibility or status; (v) as a potential investor or servicer, or current insurer, in connection with a valuation of, or assessment of credit or prepayment risks associated with, an existing credit obligation; (vi) in connection with any information, service or product sold or delivered to a “Consumer” (as that term is defined in the FCRA) that constitutes or is derived in substantial part from a Consumer Report or for any other purpose under the FCRA. Customer will not use or provide Customer services or data for the preparation of a Consumer Report (vii) or in such a manner that may cause such data to be characterized as a Consumer Report. Customer will not take any “Adverse Action” (as that term is defined in the FCRA), which is based in whole or in part on the Services, against any Consumer.

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7. Data Protection Addendum

The parties may enter into a Data Protection Addendum (DPA), which upon execution shall be incorporated into and deemed a part of the Agreement.

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