CONVERSANT SERVICE ORDER (MEDIA)
This Service Order (Media) (“Conversant Service Order”) is entered into by and between Conversant LLC and Marketing Partner. This Conversant Service Order incorporates the terms of the Conversant General Services Agreement (“GSA”) between Conversant and Marketing Partner located here (or the then-current URL as determined by Conversant) and is effective as of the date of the last Party to sign this Conversant Service Order.
For any Conversant campaigns utilizing search, email, co-registration, or CPA to generate leads for Marketing Partner (“Lead Generation”), this Conversant Service Order shall be inclusive of the attached Lead Generation Exhibit and located here.
For any Conversant campaigns utilizing the Programmatic Retargeting product, this Conversant Service Order shall be inclusive of the attached Programmatic Retargeting Addendum located here. In the event of a conflict between the terms of the Addendum and the terms of this Conversant Service Order, the terms of the Programmatic Retargeting Addendum shall control.
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. Agreement. This Conversant Service Order and subsequent Campaign specific Insertion Order(s), shall define Conversant’s and Marketing Partner’s obligations with respect to Conversant’s delivery of Campaigns on behalf of Marketing Partner. The execution of an Insertion Order by Marketing Partner and Conversant is construed as an acceptance of all the rates, terms and conditions under which advertising is sold at that time. All rates quoted, orally or through written communications are only valid fourteen (14) days from the date of such statement (or, if accepted, during the term of the applicable Insertion Order).
2. Marketing Partner’s Creative.
(a) Marketing Partner is solely responsible for the substantive content of each Ad. The content must be in compliance with “Ad Guidelines” available here. Except as provided herein, at least ten (10) business days prior to a Mobile Campaign’s start date and three (3) business days prior to a Display Campaign’s start date, Marketing Partner shall provide all creative and substantive materials (“Creative”) required for marketing a Campaign, including but not limited to: banners, language/text for promotional e-mail text, links, fields, video, rich media, and any other creative content as required. Any creative or content created by Conversant (“Conversant Content”) shall be at the mutual, written (email acceptable) approval of Conversant and Marketing Partner. Conversant will substitute revised Ads at Marketing Partner’s written request no more than two (2) times per month and such revised Ads are due five (5) business days prior to the requested Campaign flight date for the revised Ads.
(b) Marketing Partner agrees to confirm the correct function of all Creative supplied to Conversant within one (1) business day of Campaign start date. If no confirmation is received within this time frame, Conversant will assume that Creative is functioning properly and Marketing Partner agrees to pay for all impressions or clicks from the Creative. Marketing Partner acknowledges and agrees that Conversant does not pre-screen the Creative for inclusion on the Conversant network and it shall not be responsible for policing, monitoring, or editing any Creative.
3. Marketing Partner’s Campaign.
(a) Conversant in due diligence cannot monitor all websites, applications, and video content for appropriate content and makes no representations with respect to user-generated content on any website, applications, or video within its and its third party network. Marketing Partner understands that if it reasonably determines that the placement of any Campaign by Conversant harms the goodwill or reputation of Marketing Partner or disparages or brings Marketing Partner into disrepute, then Conversant shall use commercially reasonable efforts to remove such Campaign promptly following receipt of Marketing Partner's written notice thereof to Conversant; provided, however, that if Conversant reasonably believes that removal of a Campaign will have a material impact on Conversant’s ability to perform in accordance with the applicable Insertion Order, Conversant may condition such compliance on Marketing Partner providing an extension of the flight dates or other accommodation.
(b) Marketing Partner may cancel a Campaign upon written notice to Conversant’s Account Manager and such cancellation shall be effective one (1) business day after Conversant’s receipt of Marketing Partner’s written notice. Marketing Partner agrees to pay for all impressions served or clicks derived through the effective date of cancellation and, if applicable, the development cost of Creative for any Conversant Content and/or third party research fees created specifically for the canceled Campaign.
(c) Marketing Partner agrees to allow Conversant to make changes or alterations to the Creative solely for the purpose and intent of matching it to the medium of delivery. Conversant may, at its option, modify the flight date of a Campaign if the Creative or linking URL’s are not delivered on time or there are delays due to third party ad-serving, inventory fluctuation or other issues beyond its control.
(d) Marketing Partner hereby grants to Conversant and its third party publishers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaign(s) in connection with its obligations herein.
(e) If Marketing Partner’s Ads are to be served on certain social media platforms (each, a “Social Media Platform”), Marketing Partner: (i) 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; (ii) has read and understands the terms and conditions of each Social Media Platform on which it chooses its Ads will run hereunder; (iii) authorizes Conversant to drop secure Social Media Platform publisher pixels and conversion pixels on Marketing Partner’s webpage(s) to increase end user visibility; (iv) 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; (v) accepts, and authorizes Conversant to accept, the terms and conditions of each Social Media Platform on which its Ads will run and authorizes Conversant to indicate Marketing Partner acceptance of such terms and conditions; (vi) authorizes Conversant to grant the social media platform(s) a license to, and/or ownership of, any data that is collected, received, or derived from an Ad or is otherwise provided in connection with an Ad delivered through a Social Media Platform (“Social Media Data”) (as applicable) in accordance with each such social media platform’s license requirements for advertisements in effect at the time each advertisement is placed; and (vii) Advertiser understands, acknowledges, and agrees that Conversant hereby disclaims all representations and/or warranties, whether oral or written, express or implied, relating to editorial or content adjacencies or competitive separation.
(f) Conversant reserves the right to pause any Campaign that does not meet or satisfy Conversant’s reasonable performance expectations, operational requirements or for any other reason effective upon written notice to Marketing Partner. After notification, Conversant may pause a Campaign for a maximum of five (5) business days during which time Marketing Partner and Conversant will work together to address Conversant’s concerns, including but not limited to testing new Creative and/or changing rates. Conversant will not make changes to original Insertion Order specifications or Creative without Marketing Partner’s express written approval. If during or following the pause period Conversant deems, at its reasonable discretion, that a Campaign will not meet minimum performance expectations or operational requirements, Conversant reserves the right to cancel Marketing Partner’s Campaign following one (1) business day written notice to Marketing Partner. For pre-paid Campaigns, Conversant will credit Marketing Partner the unused portion of pre-payment (i.e. the total pre-payment less the cost of what has been delivered).
(g) Any advertising and marketing rights not specifically granted to Marketing Partner herein are specifically reserved by Conversant. Without limiting the generality of the foregoing, Conversant expressly reserves the right, upon notice to Marketing Partner, to refuse or cancel: (i) any advertising request, Campaign, or change any Campaign that does not completely conform to every material detail set forth in the Insertion Order; (ii) any Creative that does not arrive three (3) business days for any Display Campaign and ten (10) business days for any Mobile Campaign prior to the start date; (iii) the use of any Campaign that it deems, in its reasonable discretion, inappropriate or fails to comply with the Advertising Guidelines; (iv) the publication or transmittal of any copy, photograph or illustration of any kind for any reason; (v) any advertising request or any Campaign that is or can be hosted by any directly or indirectly competitive network; (vi) any Campaign which redirects traffic to a website other than the site specifically identified in the Insertion Order; or (vii) any Campaign which on its face asks consumers to take advantage of other or additional offers not specifically identified in the Insertion Order. All Campaigns are subject to capacity limitations which include software, hardware, bandwidth, inventory availability, payment terms, credit history, Creative performance, and market pricing limitations. Any Campaign rejected by Conversant may be replaced by Marketing Partner; provided that any such replacement material must be in writing and accompanied by appropriate material identifying the Campaign that it is to replace. Conversant shall have no liability to Marketing Partner for failure to place any Campaign on its or any third-party publisher’s network.
(h) Marketing Partner acknowledges and agrees that while Conversant will endeavor to adhere to all audience selections for a Campaign, Conversant may in its sole discretion modify and/or expand selected audiences before and during a Campaign to optimize performance.
4. Display Advertising Campaigns.
(a) Creative for display advertising may be placed on non-mobile websites, applications, video, and /or mobile websites unless otherwise expressly designated in an Insertion Order. Marketing Partner acknowledges that, except as otherwise agreed in writing, Conversant will host the Campaigns and provide the tracking solution. Conversant’s tracking count shall be used for all purposes under this Conversant Service Order. Conversant shall have the right to place pixels on Marketing Partner’s website and/or application as may be required to measure activity, track and/or measure consumer response to a Campaign and provide estimated live statistics. The technical specifications of the tracking system and its delivery methods must be met to the reasonable satisfaction of Conversant before any advertising or ad-serving will be provided by Conversant and any data collected shall be jointly owned by Marketing Partner and the Conversant Companies. If Marketing Partner removes or manipulates the pixels at any time during a Campaign without express written permission from Conversant, Conversant may suspend performance of a Campaign.
(b) In the event that there is a shortfall in impressions or click-throughs as of a Campaign stop date, Conversant may, through comparable websites and/or applications, provide as Marketing Partner’s sole remedy, “make good” impressions or extend the flight date until the number of impressions or click-throughs in the Insertion Order is achieved.
(c) Where Marketing Partner’s tracking mechanism is also used, Marketing Partner shall provide a login where Conversant can retrieve real-time reporting or, at a minimum, daily and month’s end summary reports reflecting the exact number of units delivered.
(d) With respect to Conversant cost per download (“CPD”), Conversant may require Marketing Partner install a download tracking code provided by Conversant or implement server-side download programmed by Conversant. Marketing Partner is solely responsible for installation and use of such downloads and may not make any modification thereon.
(e) For Campaigns utilizing video, Conversant shall have the right to place pixels on the Creative as may be required to measure the video’s activity, track and/or measure consumer response to a Campaign and provide estimated live statistics to Conversant. Conversant reserves the right to modify the video Creative provided by Marketing Partner solely for format or file conversion purposes without the consent of Marketing Partner. The video advertising formats accepted for a Display Campaign are located here and for a Mobile Campaign here. Conversant may place Creative on any content video that may be auto-play or consumer initiated. In the event Conversant delivers companion banners associated with a video Creative, it is value added and is not guaranteed or subject to make-goods. Payment due to Conversant for impressions is based on the consumer’s “opportunity to see” and not any specific length of time the video advertising runs.
5. Conversant Data.
(a) If Conversant agrees to place Marketing Partner’s or a third party’s (each such third party, an “Approved Third Party”) pixels, tags, or similar technology (the “Permitted Technology”) on Marketing Partner’s Creative, Marketing Partner acknowledges and agrees, and will require any Approved Third Party to acknowledge and agree, that all such data provided and/or obtained via the Permitted Technology, including any information relating to the campaign audience, is confidential and proprietary to Conversant (collectively, the “Conversant Data”). Marketing Partner shall use, and shall contractually require any Approved Third Party to use, the Conversant Data solely for one of the following applicable permitted uses: (a) attribution analysis, (b) click and impression tracking; (c) campaign measurement; (d) customization of creative on an advertisement landing page; and (e) any other purpose approved in writing by Conversant. Marketing Partner shall not, and shall contractually require any Approved Third Party to not, do anything inconsistent with the copyright or other proprietary rights of Conversant in and to the Conversant Data, including any information that might be derived therefrom. Marketing Partner shall not share, and shall contractually require any Approved Third Party not to share, the Conversant Data with any third party without Conversant’s prior written consent. Marketing Partner shall not use, and shall contractually require any Approved Third Party not to use, the Conversant Data or any derivatives thereof for any targeting, audience building, media delivery, cross-device user identification, linking to personally identifiable information, or any other similar purpose. Marketing Partner shall not use, and shall contractually require any Approved Third Party not to use, any information it obtains as a result of its handling, processing, or possession of the Conversant Data in connection with the creation, testing, promotion, marketing, selling, and/or licensing of Marketing Partner’s or the Approved Third Party’s, as applicable, information, products, or services to anyone. Marketing Partner understands and agrees that in the event of a breach or threatened breach of this Section 5, Conversant will suffer irreparable injury. Upon such an event, Conversant shall be entitled to equitable relief, including injunctive relief and specific performance, without having to prove damages or post bond. Marketing Partner shall be fully liable for any acts of omissions of an Approved Third Party in violation of this Section 5.
(b) From time to time, Marketing Partner or an Approved Third Party may request that Conversant permit other companies to piggyback on an Approved Third Party’s tags or pixels (each, a “Fourth Party”). For each such request, Marketing Partner or the Approved Third Party shall send a written request to Conversant (email to ThirdPartyRequests@conversantmedia.com to suffice) setting forth at least the following information: (a) name of Fourth Party, (b) reason for loading Fourth Party tag, and (c) subdomain of Fourth Party tag. Conversant may approve or deny such request in its sole discretion and may choose to approve or deny any Fourth Party on a global basis or a campaign by campaign basis. Marketing Partner hereby accepts full liability for ensuring each Fourth Party’s compliance with the terms of this Section 5, including without limitation all restrictions on use of Conversant Data. Additionally, if Conversant communicates any additional permitted uses or restrictions on the Fourth Party’s use of Conversant Data in an email in response to Marketing Partner’s or Approved Third Party’s request for use of a Fourth Party’s tags, Marketing Partner hereby agrees that all such communicated additional permitted uses or restrictions shall become a binding part of this Conversant Service Order. For the avoidance of doubt, any remedies available to Conversant pursuant to this Conversant Service Order for Marketing Partner’s or Approved Third Party’s breach shall equally apply to any violation by a Fourth Party of the terms hereof, and Marketing Partner shall be fully responsible for any such monetary remedies.
(a) Upon approved credit, terms are net 30 from date of invoice (which may be sent by email and/or postal mail). All payments must be in the currency as invoiced. Where payment is made by credit card, Marketing Partner expressly agrees not to charge back any amounts and will instead follow the dispute resolution procedures as specified herein. In the event that Marketing Partner is more than seven (7) calendar days past due on its account, Conversant is under no obligation to perform agreed upon services until payment is received. Conversant may, in its discretion, charge the total amount then due and owing to Marketing Partner’s credit card account.
(b) In the event of a dispute regarding amounts due, Conversant and Marketing Partner will work in good faith to resolve on a mutually satisfactory amount. Upon failure of a third-party’s tracking mechanism, Marketing Partner agrees that Conversant’s tracking count shall be applied. Only invoices sent directly to Marketing Partner are to be construed as representative of billable amounts. In the event that Conversant does not receive a written notification of a disputed bill, with rationale and support therefore specifically set forth therein, within fifteen (15) days from the date of the invoice, such invoice will be deemed valid and payable and may not thereafter be disputed.
7. Termination. Either party may terminate this Conversant Service Order without cause upon thirty (30) days written notice to the other party. Termination of this Conversant Service Order shall not relieve Marketing Partner from its obligation to pay the greater of (i) any fees that have accrued prior to the date of termination; or (ii) any minimum contract price specified in the Insertion Order(s) less any amount previously billed to and paid by Marketing Partner. Such amount shall be payable within fifteen (15) days of contract termination. Conversant reserves the right to suspend performance in the event that it feels, in good faith, insecure about Marketing Partner’s ability or intention to perform under this Conversant Service Order. The forgoing notwithstanding, Conversant reserves the right to suspend and/or terminate this Conversant Service Order immediately in the event that Marketing Partner is in breach of this Agreement.
8. Notice. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following addresses (or at such other address for a party as shall be specified by like notice) or email: if to Conversant, to the attention of the General Counsel at 101 N. Wacker Dr., 23rd Floor, Chicago, Illinois 60606 or by email at firstname.lastname@example.org. If to Marketing Partner, to the executive and address set forth on the most recent Insertion Order. Notice shall be effective the earlier of an email confirmation showing transmission was received, the notified Party’s actual receipt (or refusal to accept receipt, if applicable), or five (5) days after the date of mailing.
Revised October 2017