CONVERSANT GENERAL SERVICES AGREEMENT
THIS CONVERSANT GENERAL SERVICES AGREEMENT (the “GSA”) is effective as of the date that the last Party signs the first Order (defined below) and is made by and agreed to between you (“Marketing Partner” or “Advertiser”) and Conversant LLC (“Conversant”), with respect to the services offered under the applicable Order(s), each who signs a “Party” or together referred to as “Parties.”
NOW, THEREFORE, the Parties, for good and valuable mutual consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows:
SECTION 1: STRUCTURE OF THE AGREEMENT, SERVICES, AND ORDERS.
1.1 The terms and conditions for services as specified in each Order that Conversant provides Marketing Partner (the “Services”) are found in this GSA and any additional documents referencing this GSA and signed by the Parties (collectively, the “Agreement”). Conversant shall provide the Services as specified in a service order (“Service Order”) and/or an insertion order (“Insertion Order”), each referencing or incorporating this GSA. An Insertion Order may reference or incorporate the terms of a Service Order. As used in this GSA, an “Order” means any one or more Service Orders and Insertion Orders.
1.2 Each valid Order will be a separate but associated agreement incorporating the terms of this GSA and only applicable and binding as related to the Services and Parties as specified in the applicable Order. The Parties intend that this GSA and all Orders, to the maximum extent practical, shall be construed in a manner that yields the greatest internal consistency between and among them. Subject to the foregoing, in the event of a conflict between the terms of this GSA and the terms of an Order, the terms of the GSA shall control; provided, however, that the Parties may in any Order agree, with respect to the Services offered under the applicable Order, to: (a) exclude, except, or modify any portion or otherwise controlling provision of this GSA; and/or (b) adopt a clause or provision to apply in lieu of any otherwise controlling provision of this GSA.
1.3 Acceptance of any Order shall be considered an act of acceptance of this GSA by the Parties.
SECTION 2: DEFINITIONS.
Unless otherwise defined herein or in any Order, the following definitions shall apply to the terms of this Agreement:
2.1 “Ad(s)” means advertising content that is disseminated by Conversant on behalf of Marketing Partner.
2.2 “Affiliate(s)” means any entity that controls, is controlled by, or is under common control with the applicable Party.
2.3 “Campaign(s)” means an organized program or series of Ads.
2.4 “Confidential Information” means all administrative, technical, financial, trade secret, or other private information, not generally available to the public, including any Conversant rates or pricing information, whether or not such Confidential Information carries a proprietary legend or is transmitted verbally. Confidential Information does not include information, even if designated by a Party, which: (a) is or becomes generally available to the public without breach of this Agreement; (b) can be documented was in the possession of the Receiving Party (defined below) prior to its disclosure by the Disclosing Party (defined below); (c) becomes available from a third party not in breach of any obligations of confidentiality and without knowledge by the Receiving Party of any breach of a fiduciary duty or obligation; or (d) can be documented was independently developed by the Receiving Party.
2.5 “Laws” means all applicable laws, rules, and regulations, including without limitation those relating to online privacy.
2.6 “Marketing Partner Creative” means content, images, or advertising materials provided to Conversant by Marketing Partner or its agent for use in any Campaign.
2.7 “Marketing Partner Marks” means Marketing Partner’s trademarks, service marks, names and logos.
2.8 “Visitor” means any person or entity who/that clicks on an Ad and/or enters Marketing Partner’s Website through a link from a publisher’s website, e-mail, or other Conversant-approved promotional channel.
SECTION 3: PRICING AND PAYMENT.
Prices and payment terms for each of the Services performed by Conversant will be set forth in the Order(s). Amounts for Services performed do not include 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. 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, collection agency fees, and costs incurred in its collection efforts and enforcement of 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.
SECTION 4: TERM AND TERMINATION.
The term of and conditions for termination of each of the Services performed by Conversant will be set forth in the applicable Order(s). Termination of Services under one Order shall not impact the terms, rights or obligations of the Parties under this GSA and any other valid Order between the Parties. Notwithstanding the foregoing, Conversant may terminate this Agreement immediately, in whole or in part, in its sole but reasonable discretion, with written notice, should Marketing Partner: (a) engage in illegal activity of any type; (b) breach an agreement with Conversant or its Affiliate(s); (c) be a party to a lawsuit involving Conversant or its Affiliate(s); (d) become insolvent; (e) make an assignment for the benefit of creditors; (f) cease to do business as an ongoing concern; or (g) file a petition or have a petition filed against it under any bankruptcy or insolvency laws. This GSA shall automatically terminate once all associated Orders have been terminated.
SECTION 5: DATA PROTECTION
5.1 This Section 5 applies where, and only to the extent that, Conversant processes Personal Data of Data Subjects who are residing in the EEA.
5.2 In this Section 5, the following terms shall have the following meanings: (a) "Controller", "Processor", "Data Subject", "Personal Data", "Processing" (“Processed” and "Process"), and "Special Categories of Personal Data" shall have the meanings given in EU Data Protection Law; (b) "EU Data Protection Law" means (i) prior to 25 May 2018, the EU Data Protection Directive (Directive 95/46/EC); (ii) on and after 25 May 2018, the EU General Data Protection Regulation (Regulation 2016/679); (iii) the EU Privacy and Electronic Communications Directive (Directive 2002/58/EC) as amended by Directive 2009/136/EC; and (iv) all national data protection legislation implementing or supplementing (i), (ii) or (iii); (c) “Model Clauses” means the standard contractual clauses for the transfer of Personal Data to third countries, as set out in Commission Decision 2004/915/EC; and (d) "Supervisory Authority" means any competent regulatory authority responsible for monitoring and enforcing the EU Data Protection Law, including but not limited to the UK Information Commissioner's Office.
5.3 Marketing Partner may disclose or otherwise make available to Conversant certain data (including Personal Data and transactional data) about Visitors to its digital properties or its customers and prospective customers (the "Data") for Conversant to Process for the purpose of performing the Services or as otherwise described in an Order (the "Permitted Purpose").
5.4 Marketing Partner is a Controller of the Data it discloses or otherwise makes available to Conversant, and Conversant will Process the Data as a separate and independent Controller strictly for the Permitted Purpose. In no event will the parties Process the Data jointly as joint Controllers.
5.5 Each party undertakes that it will comply with EU Data Protection Law at all times during the term of the Agreement, which will include: (i) Processing the Data in compliance with EU Data Protection Laws and (ii) providing its Data Subjects with all the information required pursuant to EU Data Protection Laws to ensure that they understand how their Personal Data will be Processed under the Agreement.
5.6 Conversant shall have in place appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by its Processing of the Data under the Agreement, in particular against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access.
5.7 To the extent that Conversant Processes any Data that originates from the European Economic Area in a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for Personal Data, the parties acknowledge and agree that Conversant shall provide appropriate safeguards (within the meaning of EU Data Protection Law) for any such Data by complying with the Model Clauses or any other lawful data export mechanism permissible under EU Data Protection Law.
5.8 Where Conversant engages a third-party Processor to Process the Data on its behalf, Conversant shall comply with, and ensure that such Processor also complies with, the requirements of the Agreement and EU Data Protection Laws. Conversant shall be fully liable for the acts and/or omissions of its Processors as though they were its acts or omissions.
5.9 The Parties agree to provide reasonable assistance as is necessary to each other to enable each Party to comply with any subject access requests (whether in relation to access to Personal Data, rectification, restrictions on Processing, erasure or portability or any other right) and to respond to any other queries or complaints from their Data Subjects in accordance with the EU Data Protection Law.
5.13 This Section 5 shall survive termination or expiry of the Agreement. Upon termination or expiry of the Agreement, each Party may continue to Process the Data under its control provided that such Processing complies with the requirements of this Clause and EU Data Protection Law.
SECTION 6: COLLECTION AND USE OF TRANSACTION DATA.
In performing the Services, Conversant and its Affiliates may collect, own or have an interest in and may use as they choose in compliance with all applicable Laws (defined below), Visitor demographic data, transactional information, and information and data derived from the technology platform(s) and Services provided by Conversant. Unless otherwise agreed between the Parties in an Order, Marketing Partner is prohibited from providing Conversant with and/or allowing Conversant to capture any personally identifiable information of Visitors and/or third parties, including without limitation through an order ID or similar record.
SECTION 7: CONFIDENTIALITY.
7.1 A Party (the “Receiving Party”) may receive Confidential Information of the other Party (the “Disclosing Party”) and the Receiving Party shall keep such Confidential Information in confidence and protect such Confidential Information, including, but not limited to, by security measures at least as restrictive as those it takes to protect its own Confidential Information, but in no case less than reasonable security measures. Except as required by law or permitted by this Agreement, the Receiving Party shall not disclose Confidential Information to any third party (other than to its legal and financial advisors, agents, employees, and consultants on a “need to know” basis who are under obligations of confidentiality at least as restrictive as those in this Agreement), without the Disclosing Party’s prior express written consent, and the Receiving Party shall not use any Confidential Information for any purpose other than in connection with the performance of its obligations and exercise of its rights under this Agreement. At the express written request of the Disclosing Party, the Receiving Party shall return or destroy any Confidential Information of the Disclosing Party to the extent possible and except as otherwise needed as evidence or as required to be provided by each Party in an aggregated form to governmental authority(ies). The Parties agree the Confidential Information of the Disclosing Party is and remains the property of the Disclosing Party. Disclosure or use of Confidential Information by the Receiving Party in violation of the provisions of this Section would cause irreparable injury to the Disclosing Party; therefore, in the event either Party breaches the provisions of this Section, the other Party, in addition to any other remedies it may have, is entitled to preliminary and permanent injunctive relief without having to post a bond.
7.2 The Receiving Party may disclose Confidential Information pursuant to an order of a court of competent jurisdiction, by rule or regulation of an administrative agency to which the Receiving Party is subject, or subpoena, provided that, to the extent permitted by law and feasible, the Receiving Party provides prompt written notice of such court order, requirement, or subpoena to the Disclosing Party to enable the Disclosing Party to seek a protective order, confidential treatment, or to otherwise prevent or restrict such disclosure. The Receiving Party will reasonably cooperate, at the Disclosing Party’s expense, to assist the Disclosing Party in seeking such protective order or from otherwise preventing or restricting such disclosure.
SECTION 8: MUTUAL WARRANTIES.
Each Party represents and warrants that: (a) it has the full power and authority to enter into this Agreement; (b) its execution of and performance under this Agreement does not and will not breach or cause a default under any other agreement, contract, or joint venture agreement to which it is a party; and (c) its performance hereunder will fully comply with all Laws. Any agency executing this GSA or an Order on behalf of its client represents and warrants that it has the authority to bind its client to the terms stated herein and for all obligations under this GSA and any Orders.
SECTION 9: MARKETING PARTNER REPRESENTATIONS AND WARRANTIES.
Marketing Partner represents and warrants that:
a. it holds all necessary rights to permit the use, reproduction, distribution, transmission, or display of all Marketing Partner Creative and/or Marketing Partner Marks and any materials to which Visitors can link through from the Ads, or any products or services made available to Visitors through the Ads, and such Marketing Partner Creative and Marketing Partner Marks will not: (i) violate any applicable Laws and/or give rise to criminal or civil liability or infringe any copyright, patent, trademark or service mark, trade secret rights, or any other personal, moral, contract, property, or privacy right of any third party (collectively “Unlawful Conduct”); (ii) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking or warez content or conduct (collectively “Offensive Conduct”); or (iii) encourage conduct that would constitute Unlawful Conduct or Offensive Conduct;
b. it has a reasonable basis for all claims made within the Ads, the Ads contain all disclosures required by Laws, and it possesses appropriate documentation to substantiate such claims and shall fulfill all commitments made in its Campaigns;
d. all Visitor data collected pursuant to this Agreement shall only be used by Marketing Partner for legal purposes and in compliance with Laws;
g. it shall ensure via periodic testing that any applicable opt-out mechanisms on its website or available via mobile app store related to the Services Conversant is providing are functioning correctly;
h. it will honor the user’s opt-out choice (e.g., by not passing a device’s IDFA or similar application advertising identifier to Conversant if the user has turned on limit ad tracking) whenever Conversant has a direct integration with Marketing Partner’s mobile application;
j. it shall not use Flash cookies or super cookies, and, with respect to HTML 5 or other mechanisms that allow for the persistent storage and retrieval of information, these mechanisms must operate in accordance with any user-set browser controls (such as those presently available for HTTP cookies); and
k. it will not, under any circumstances, attempt to match any data contained in reports, analytics, data feeds, or any other information received from Conversant, including without limitation any pseudonymous identifiers, with any directly identifiable information by any means whatsoever, and will contractually prohibit any third party with which it shares any such data from attempting to match any such data with any directly identifiable information by any means whatsoever.
SECTION 10: INDEMNIFICATION.
Each Party (the "Indemnitor") shall defend, indemnify and hold the other Party, and that Party’s parent and subsidiaries, and their respective employees, officers, directors, and Affiliates (the "Indemnitee") harmless against all third party allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs, and expenses, including, but not limited to, reasonable attorneys’ fees, court costs, and witness fees attributable to or related to the Indemnitor's breach of this Agreement ("Claim"). Should any Claim give rise to a duty of indemnification under the provisions of this Agreement, then the Indemnitee shall promptly notify the Indemnitor in writing. Failure to give such prompt notice, however, will not relieve the Indemnitor of its obligations under this Section, except to the extent of losses that would have been avoided had such notice been given. The Indemnitee will fully cooperate with the Indemnitor to enable the Indemnitor to fulfill its obligations hereunder with respect to any Claim. The Indemnitee, at its own expense, may participate in the defense, provided that the Indemnitor shall control such defense and all negotiations relative to the settlement of any Claim. Participation in the defense shall not waive or reduce any obligations of the Indemnitor to indemnify or hold the Indemnitee harmless. The Indemnitor may enter into a settlement only if it: (a) involves only the payment of money damages by the Indemnitor; and (b) includes a complete release of the Indemnitee. Any other settlement will be subject to written consent of the Indemnitee (consent not to be unreasonably withheld or delayed).
SECTION 11: LIMITATION OF LIABILITY.
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 10 AND CONFIDENTIALITY OBLIGATIONS IN SECTION 7, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND REGARDLESS OF THE THEORY ON WHICH DAMAGES ARE SOUGHT, INCLUDING, WITHOUT LIMITATION, CONTRACT, STATUTE OR TORT. THEY SHALL NOT APPLY TO THE EXTENT THAT DAMAGES CANNOT BE LIMITED UNDER APPLICABLE MANDATORY LAW. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 10 AND CONFIDENTIALITY OBLIGATIONS IN SECTION 7, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY WILL NOT EXCEED THE TOTAL OF AMOUNTS PAID AND PAYABLE BY MARKETING PARTNER TO CONVERSANT FOR SERVICES DURING THE TWELVE (12) MONTHS BEFORE THE DATE WHEN THE LIABILITY AROSE.
SECTION 12: DISCLAIMER OF WARRANTIES.
THE SERVICES PROVIDED BY CONVERSANT, THEIR USE, AND THE RESULTS OF SUCH USE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY REGARDING AN ECONOMIC OR OTHER BENEFIT THAT MIGHT BE GENERATED AS A RESULT OF THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 13: FORCE MAJEURE.
Except with respect to Marketing Partner’s payment obligations described herein or in an Order, neither Party will be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such Party, including, but not limited to, electrical outages, failure of Internet service providers, default due to Internet disruption, including, but not limited to, denial of service attacks, riots, insurrection, acts of terrorism, war, fires, floods, earthquakes, explosions, and other acts of nature, provided that such default or delay cannot be reasonably circumvented by the non-performing Party and that the non-performing Party uses reasonable efforts to resume performance as soon as practicable under the circumstances.
SECTION 14: CHOICE OF LAW AND ATTORNEYS’ FEES.
The plaintiff to any litigated dispute arising out of or relating in any way to this Agreement shall have the option of selecting venue, and the other Party shall consent to such venue and exclusive jurisdiction, in any of the following States: New York, Delaware, Texas, or Illinois. This Agreement shall be governed by the laws of the State selected for venue without respect to its choice of law rules. The prevailing Party of any litigated dispute arising out of or relating in any way to this Agreement shall receive its reasonable attorneys’ fees, together with its reasonable costs and expenses incurred resolving the dispute, as part of the judgment.
SECTION 15: MARKETING.
Marketing Partner agrees that Conversant may identify it as a Marketing Partner and use Marketing Partner’s logo in client lists and in other communications and materials. Any other use of either Party’s name shall require that Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.
SECTION 16: INDEPENDENT CONTRACTORS.
The relationship of the Parties shall be solely that of independent contractors, and nothing in this Agreement or in the business or dealings between the Parties shall be construed to make them joint venturers or partners with each other. Neither Party shall do anything to suggest to third parties that the relationship between the Parties is anything other than that of independent contractors.
SECTION 17: SEVERABILITY/WAIVER.
If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void, or against public policy, the remaining provisions shall remain in full force and effect. The Parties shall in good faith attempt to modify any invalidated provision to carry out the Parties’ stated intentions. The waiver of any breach of any provision under this Agreement by any Party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
SECTION 18: SURVIVAL.
Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening.
SECTION 19: ASSIGNMENT.
Neither Party may assign this Agreement to a third party without the other Party’s prior express written consent, which consent will not be unreasonably withheld or delayed, except in the case of a sale or other transfer of all or substantially all of a Party’s assets or equity, whether by sale of assets or stock or by merger or other reorganization, which shall not require the non-assigning Party’s consent provided that such successor entity is not in direct competition with Conversant or its Affiliate(s).
SECTION 20: ENTIRE AGREEMENT, AMENDMENT, COUNTERPARTS.
This Agreement contains the entire agreement and understanding of the Parties, and, with the exception of any currently existing and valid Legacy Agreement, supersedes all prior agreements and understandings between the Parties, whether oral or written, regarding the subject matter hereof. This Agreement may only be amended or modified by (a) Marketing Partner’s click through acceptance of online terms offered by Conversant; (b) Marketing Partner’s continued use of the Services after Conversant posts revised terms at www.conversantmedia.com/legal/gsa; or (c) by a written instrument that describes the alteration, amendment or modification, signed by an authorized representative of each Party. No interlineations to this GSA or to any Order will be binding unless signed by an authorized representative of each Party. This Agreement may be signed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement. The Parties may also intend to discuss certain additional work efforts in the future, to be agreed in writing in an additional Order.
SECTION 21: BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Each Party agrees that it has had the opportunity to review this Agreement with an attorney and neither Party shall be considered the drafter.
SECTION 22: THIRD PARTY DISPUTES.
In the event of a third party claim against either Conversant’s intellectual property or right to offer any good or service, or if, in Conversant’s opinion, such a claim is likely, Conversant shall have the right, in its sole discretion, to: (a) secure the right to continue using the intellectual property, good, or service; (b) replace or modify the intellectual property, good, or service to make it non-infringing, provided that any such replacement or modification will have similar operating capabilities and functionalities of the allegedly infringing intellectual property, good, or service provided hereunder; or (c) terminate the Order immediately, in whole or in part, if it is unable to secure, replace, or modify the intellectual property, good, or service as set forth in subsections (a) and (b) herein.
SECTION 23: METHOD OF SIGNATURE.
For purposes of this Agreement, 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 relevant Party.
General Services Agreement
Confidential and Proprietary Information
v. 8/June 2018