CONVERSANT FULL PLATFORM SERVICE ORDER
THIS CONVERSANT FULL PLATFORM SERVICE ORDER (the “Service Order”) is effective as of the date that the last relevant Party signs the relevant IO (defined below) and is made by and agreed to between Conversant LLC (“Conversant”) and the advertiser or agency signing the relevant Insertion Order (“Marketing Partner” or “Advertiser,” which shall be deemed to include an agency on behalf of an advertiser where applicable), each a “Party” or together referred to as the “Parties.” This Service Order incorporates the terms of the Conversant General Services Agreement (the “GSA”) between Conversant and Marketing Partner located at www.conversantmedia.com/legal/gsa (or the then-current url as determined by Conversant). This Service Order governs the Parties’ business relationship for products and services, each subject to a separate IO, which are incorporated into this Service Order by reference.
In consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS. In addition to the terms defined the in GSA, and unless elsewhere defined herein, the following additional terms shall apply to this Service Order:
1.1. “Ad Bank” means a virtual account for the benefit of Marketing Partner for the depositing and debiting of credits as set forth in Section 3.2.
1.2. “Advertising” means using a Cookie or other technology to identify Customers and provide relevant personalized Ads.
1.3. “Attributed Impression” means a logged impression delivered in a Brand Advertiser Campaign that has been attributed to Marketing Partner based on an individual’s shopping and/or purchase history, which is applied in the same manner to all clients with data contributing to such Eligible Audience.
1.4. “Brand Advertiser” means an advertiser for which Conversant will serve personalized digital advertisements to an Eligible Audience, but excluding Marketing Partner and any companies the parties agree in writing (email to suffice) to exclude.
1.5. “Brand Advertiser Campaign” means a digital advertising campaign delivered by Conversant on behalf of a Brand Advertiser that targets an Eligible Audience.
1.6. “Cookie” means parcels of text sent by a server to a browser and then sent back unchanged by the browser each time it accesses that server.
1.7. “Customer” means an individual who is served Ads based on their interest and is either a visitor to Marketing Partner’s Website or an individual who made an offline in-store purchase with Marketing Partner and whose Offline Data is provided to Offline Data Processor by Marketing Partner.
1.8. “Database” means the location in which Conversant stores Non-PII Data.
1.9. “Eligible Audience” means a digital advertising audience created for a Brand Advertiser utilizing Interactions with Marketing Partner and, where applicable, Interactions with one or more additional Conversant clients.
1.10. “Interaction” means an individual’s (a) purchase transaction with a Conversant client or (b) visit to one or more pages of a Conversant client’s website.
1.11. “IO” means an insertion order that sets forth the details for each Campaign, including flight dates, cost, and total budget. Each IO executed between the parties is incorporated into this Service Order by reference.
1.12. “Non-PII Data” means information collected by Conversant that is not personally identifiable and Non-PII Offline Data.
1.13. “Non-PII Offline Data” means the non-personally identifiable Offline Data processed and transferred by the Offline Data Processor to Conversant.
1.14. “Offline Data” means certain information including personally identifiable information (“PII”) collected and transferred by Marketing Partner to the Offline Data Processor as described herein.
1.15. “Offline Data Processor” means a service provider that renders Offline Data anonymous.
1.16. “Tag” means code (e.g., HTML) or a web beacon (e.g., pixel tag, clear GIF) that requests the delivery of an Ad or tracks an Ad impression or click..
2. STATEMENT OF WORK. Conversant shall provide services to Marketing Partner that involve the use of both Offline Data and Non-PII Data. Marketing Partner will work with Conversant to facilitate the transfer of Offline Data to the Offline Data Processor via a secure file transfer protocol (SFTP). The Offline Data Processor will convert the Offline Data to Non-PII Offline Data before supplying it to the Database. Non-PII Data will also be collected by utilizing a Cookie and/or Tag for the purpose of Advertising. Conversant will use the Non-PII Data for the creation of derived attributes to be utilized for Advertising and will utilize Interactions with Marketing Partner to create or inform Eligible Audiences for Brand Advertisers. Additionally, Conversant will use the Non-PII Data for Campaigns as specified in each IO.
3. BILLING AND PAYMENT.
3.1 Conversant CRM Services. Marketing Partner agrees to pay all fees and charges for Campaigns as set forth on an applicable IO, which shall be exclusive of any applicable taxes. Marketing Partner will be responsible for the payment of any federal, state and local sales, use, value added, excise, duty and any other taxes assessed, other than taxes based on Conversant’s net income. IOs will normally commence on the launch of an Ad campaign. Thereafter, Marketing Partner will be billed on a monthly basis, and payment will be due thirty (30) days after the date of the invoice. Accounts unpaid thirty (30) days after the due date of any invoice may have service suspended or terminated and any outstanding balances will then become immediately due. Account suspension or termination shall not relieve Marketing Partner of its obligation to pay the monthly fees and charges due up to the date of suspension or termination. Any late payments will accrue interest equal to one and one-half percent (1.5%) per month, or the maximum amount allowable under law, whichever is less, compounded monthly. Marketing Partner may be charged twenty-five dollars ($25) for payments for checks that are returned due to insufficient funds. Marketing Partner agrees to pay Conversant its reasonable expenses, including attorneys’ fees and collection agency fees, and costs incurred in enforcing its rights under this Section. Marketing Partner will not be entitled to deduct or offset any amounts payable to Conversant against any amount or liability that Conversant or its Affiliate(s) may owe Marketing Partner.
3.2 Conversant Brand Advertiser Campaign Services. Conversant will establish an Ad Bank for Marketing Partner. At the end of each calendar quarter, Conversant will deposit a virtual credit in the amount of twenty percent (20%) of the revenue actually received by Conversant during the quarter from a Brand Advertiser for all Attributed Impressions in a Brand Advertiser Campaign. By way of example only, if a Brand Advertiser pays Conversant $100,000 for a Brand Advertiser Campaign in which half of all impressions delivered were Attributed Impressions, thus accounting for $50,000 of the revenue received, Conversant would contribute a $10,000 credit to Marketing Partner’s Ad Bank at the end of the calendar quarter during which Conversant received the revenue from the Brand Advertiser. The credits in the Ad Bank expire three (3) months after they are deposited and may only be used by Marketing Partner for campaigns with Conversant pursuant to one or more executed IOs, and the IO must state that the campaign is utilizing credits from the Ad Bank. Within ninety (90) days after the end of each calendar quarter, Conversant will provide a report to Marketing Partner that includes (a) the revenue received by Conversant during the quarter for all Attributed Impressions in all Brand Advertiser Campaigns; (b) the amount of the credit to be deposited in the Ad Bank for the revenue reported in part (a) of this Section 3.2; (c) the amount of credits in the Ad Bank that were either used or expired during the quarter; and (d) the closing balance of the Ad Bank at the end of the quarter..
4. TERM. This Service Order will commence on the Effective Date and continue until terminated in accordance with this Section 4, except that the Parties agree that Marketing Partner’s first Campaign will run for a minimum of ninety (90) days. Except as set forth in this Section 4, either Party may terminate this Service Order for any reason following thirty (30) days’ written notice. In addition, Conversant may terminate this Service Order at any time in accordance with Section 3.1. The terms of this Service Order and the GSA will apply to any IO between the Parties that reference this Service Order. Upon termination of this Service Order, any remaining balance in Marketing Partner’s Ad Bank will immediately expire and may not be used by Marketing Partner.
5. DELIVERY. Marketing Partner will deliver the Offline Data in a format and in a manner mutually agreed upon by the Parties, using SFTP or another agreed-upon commercially reasonable encryption measure, to the Offline Data Processor. Marketing Partner will not deliver: (i) credit card or other financial account information; (ii) Social Security Numbers; or (iii) driver’s license or state ID card numbers. If an individual’s information was previously sent to Offline Data Processor and that individual later opts-out with Marketing Partner by phone, mail or email Marketing Partner will notify the Offline Data Processor in each monthly update file that the individual has opted-out.
7. ADVERTISING/DESIGN CONTENT.
7.1 Creative Ownership. Marketing Partner will own and have all right and title in all pre-existing Marketing Partner Marks. All other logos, designs, or other promotional art work used by Conversant to create Ads hereunder are Conversant’s work product, belong entirely to Conversant, and may not be used by any other party without Conversant’s express prior written consent (the “Work Product”). Marketing Partner grants Conversant a non-exclusive worldwide and royalty-free license to use, execute and copy, for purposes outlined in this Service Order, all pre-existing Marketing Partner Marks contained in the Work Product. However, nothing in this Service Order shall be construed as a grant to Conversant by Marketing Partner any right to manufacture for sale any merchandise or offer any service bearing Marketing Partner’s name, likeness, portrait or picture other than for the purpose of serving Ads hereunder. The Ads created by Conversant are subject to the mutual approval of Conversant and Marketing Partner, but for promotional purposes only and not for commercial sale or any other purpose which would lead to the deriving of income from the direct use of such Ads by Conversant or any other party, other than income derived from serving Ads hereunder. Additionally, Marketing Partner acknowledges and agrees that it will not have any ownership or other rights to any digital advertising delivered in a Brand Advertiser Campaign.
7.2 Ad Choices. Ads will include a menu that informs consumers how they received the Ad and provides a means to opt-out of and/or opt-in to Conversant Advertising.
7.3 Social Media. If Marketing Partner’s Ads are to be served on certain social media platforms (each, a “Social Media Platform”), Marketing Partner: (a) authorizes Conversant to grant the Social Media Platform(s) a worldwide, nonexclusive, nontransferable, royalty-free, fully paid up license to reproduce, display, perform, and use any and all data of or relating to the bidding and placement of an Ad on the Social Media Platform; (b) authorizes Conversant to drop secure Social Media Platform publisher pixels and conversion pixels on Marketing Partner’s webpage(s) to increase end user visibility; and (c) agrees to grant Conversant access to Marketing Partner’s Social Media Platform Application Programming Interface (API) account to allow Conversant to create Ads and access reporting insights.
9. CONVERSANT’S REPRESENTATIONS AND WARRANTIES. Conversant represents and warrants that: (a) the Ads (with the exception of content or intellectual property supplied by Marketing Partner) will not infringe upon or violate intellectual property or other rights of a third party; and (b) Conversant shall be responsible for the acts and omissions of Offline Data Processor as if the same were performed by Conversant hereunder.
10. NOTICES. Any required notice will be in writing and addressed to the relevant Party at its address below by overnight, second day, or certified mail, and will be deemed received upon actual receipt.
If to Conversant:
Attn: In-House Counsel
101 North Wacker Drive, Suite 2300
Chicago, Illinois 60606
If to Marketing Partner:
To the name and address included on the most recent IO
11. SURVIVABILITY. Notwithstanding termination of this Service Order, any provisions that by their nature are intended to survive, will survive termination.
13. METHOD OF SIGNATURE. For purposes of this Service Order, a Party may agree and/or sign by any of the following actions as determined by Conversant: (a) Conversant posting online terms; (b) Marketing Partner clicking through a Conversant click through or similar agreement; and/or (c) by a written instrument signed by an authorized representative of each Party.
Full Platform Service Order
Confidential and Proprietary