CONVERSANT POLITICAL AND ADVOCACY SERVICE ORDER
THIS CONVERSANT POLITICAL AND ADVOCACY SERVICE ORDER (the “P&A Service Order”) is made by and between the advertiser or agency signing an Insertion Order governed by this P&A Service Order (“Marketing Partner”) and Conversant LLC (“Media Company”); each a “Party” or together referred to as the “Parties.” This P&A Service Order incorporates the terms of the Conversant General Services Agreement (the “GSA”) between Media Company and Marketing Partner located at www.conversantmedia.com/legal/gsa (or the then-current url as determined by Media Company) and is effective as of the date of the last Party to sign this P&A Service Order or an Insertion Order governed by this P&A Service Order. This P&A Service Order governs the Parties’ business relationship for products and services, each subject to a separate insertion order (“Insertion Order” or “IO”) which are incorporated into this P&A 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 in the GSA, and unless elsewhere defined herein: the following additional terms shall apply to this P&A Service Order: (a) “Offline Data” means certain information including personally identifiable information (“PII”) collected offline that is transferred by Marketing Partner to the Offline Data Processor as described in Section 5 below. (b) “Offline Data Processor” means a service provider that renders Offline Data anonymous. (c) “Non-PII Data” means information that is not personally identifiable and/or Offline Data transferred to Media Company by the Offline Data Processor as described in Section 2. (d) “Database” means the location in which Media Company stores Non-PII Data. (e) “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. (f) “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. (g) “Individual” means someone: (i) who is served Ads based on their interest; (ii) if applicable, who is a visitor to Marketing Partner’s website; and/or (iii) whose Offline Data is provided to Offline Data Processor by Marketing Partner. (g) “Advertising” means using a Cookie or other technology to identify Individuals and provide relevant personalized Ads.
2. STATEMENT OF WORK.
(a) Campaign Mediums. Media Company shall use Non-PII Data for Marketing Partner’s Campaign(s) applicable to this P&A Service Order. Those Campaigns may consist of display, video, and/or, if applicable, Lead Generation advertising delivered to non-mobile websites as well as cellular, tablet, smartphone and handheld devices, as determined by the Parties. For any Campaigns utilizing search, email, co-registration, or CPA to generate leads for Marketing Partner (“Lead Generation”), this P&A Service Order shall be inclusive of the Lead Generation Exhibit located at www.conversantmedia.com/legal/media-lead-generation-exhibit.
(b) Data. Non-PII Data will be collected by utilizing a Cookie and/or Tag for the purpose of Advertising. In addition, and if contemplated by the Parties, Marketing Partner will work with Media Company to facilitate the transfer of Offline Data to the Offline Data Processor. The Offline Data Processor will convert the Offline Data to Non-PII Data before supplying it to the Database. Marketing Partner acknowledges that Section 5 of this P&A Service Order is only applicable in the event that Marketing Partner is providing Offline Data to Media Company.
3. BILLING AND PAYMENT. Upon approved credit terms, payment for invoices for each Campaign will be due 30 days after the date of the invoice. Marketing Partner agrees to pay all fees and charges attributable to the IO at the then current rates, which shall be exclusive of any applicable taxes. 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. IOs will normally commence on the launch of an Ad Campaign. Thereafter, unless otherwise specified in the IO, Marketing Partner will be billed on a monthly basis. Accounts unpaid seven (7) 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 termination or suspension. In the event of a dispute regarding amounts due, Media Company 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 Media Company’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 Media Company 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.
4. TERM/TERMINATION.
(a) Term. This P&A Service Order will be valid for the time specified by Marketing Partner in each IO, but not less than ninety (90) days from the start of the first Campaign (“Initial Term”).
(b) Termination. After the Initial Term, Marketing Partner may terminate this P&A Service Order for any reason following thirty (30) days’ written notice. If termination occurs prior to the end of a Campaign paid for in advance by Marketing Partner, Media Company will refund any unspent amount, without interest, to Marketing Partner as of the termination date. Termination of this P&A 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. Media Company 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 P&A Service Order. The forgoing notwithstanding, Media Company reserves the right to suspend and/or terminate this P&A Service Order immediately in the event that Marketing Partner is in breach of this P&A Service Order.
5. OFFLINE DATA.
(a) Mode of Offline Data Delivery. Marketing Partner will deliver the Offline Data, using commercially reasonable encryption measures, 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 applicable, 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.
(b) Representations and Warranties Regarding Offline Data. In addition to the representations and warranties listed in the GSA, Marketing Partner represents and warrants that: (a) the Offline Data was collected in full compliance with all applicable privacy policies and with all applicable laws, rules and regulations, including, without limitation, the Federal Trade Commission Act, the Fair Credit Reporting Act, the Gramm-Leach-Bliley Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN SPAM Act) and the Children’s Online Privacy Protection Act; (b) the Offline Data relates only to residents of the United States; (c) Marketing Partner is the owner of the Offline Data or otherwise has the right to transfer the Offline Data to the Offline Data Processor for the uses described in this P&A Service Order; (d) the Offline Data and Marketing Partner’s transfer of the Offline Data to the Offline Data Processor will not infringe upon any third-party right or violate any applicable privacy policy, law, rule or regulation; (e) the Offline Data is as current, accurate and complete as reasonably possible; (f) Media Company is permitted by Marketing Partner to use Non-PII Data for the creation of derived attributes to be utilized for Advertising.
6. DISCLOSURE OF RELATIONSHIP. If applicable and if it does not already, Marketing Partner agrees to have a clear and conspicuous link on its homepage to its privacy policy. Marketing Partner will clearly and conspicuously notify Individuals in its privacy policy of their ability to opt out of the sharing of Non-PII Data with Media Company, including a clear and conspicuous link that directs Individuals to the Network Advertising Initiative’s (“NAI”) opt-out page located at http://www.networkadvertising.org/choices or a similar opt-out mechanism. Examples of an appropriate description of the opt-out mechanism can be found at https://www.networkadvertising.org/addendum-examples-of-notice. If applicable and if Marketing Partner has to make a material change to its privacy policy for this program, Marketing Partner shall notify individuals to whom the Offline Data relates. Marketing Partner is responsible for ensuring that it is in full compliance with all applicable laws and regulations regarding the posting of privacy policies and the collection, use and disclosure of the Offline Data.
7. ADVERTISING/DESIGN CONTENT.
(a) Marketing Partner’s Creative. Marketing Partner is solely responsible for the substantive content of each Ad. The content must be in compliance with “Creative Content Guidelines” available at https://www.conversantmedia.com/legal/creative-guidelines. Marketing Partner shall provide Marketing Partner Creative as required for marketing a Campaign, including but not limited to: banners, language/text for promotional e-mail text, links, fields, video, rich media. Marketing Partner agrees to allow Media Company to make changes or alterations to the Ads for the purposes and intent of matching it to the medium of delivery, and/or design if necessary according to the Ad Guidelines and Media Company’s sole but reasonable discretion. Media Company may, at its option, modify the flight date of a Campaign if Marketing Partner 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. Any creative or content created by Media Company (“Media Company Content”) and modified Marketing Partner Creative shall be at the mutual, written (email acceptable) approval of Media Company and Marketing Partner. 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 to create the Ads for use directly in connection with Marketing Partner's Marks hereunder are Media Company’s work product, belong entirely to Media Company, and may not be used by any other party without Media Company’s express prior written consent. Marketing Partner grants Media Company a non-exclusive worldwide and royalty-free license to use, execute and copy for purposes outlined in this Agreement all Marketing Partner Marks and Marketing Partner Creative contained in the Ads. Marketing Partner agrees to confirm the correct function of all Marketing Partner Creative supplied to Media Company within one (1) business day of Campaign start date. If no confirmation is received within this time frame, Media Company will assume that Marketing Partner Creative is functioning properly and Marketing Partner agrees to pay for all impressions or clicks from the Ads.
(b) Opt Out. If applicable, 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 Media Company Advertising.
(c) 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 Media Company 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 Media Company 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 Media Company access to Marketing Partner’s Social Media Platform Application Programming Interface (API) account to allow Media Company to create Ads and access reporting insights.
8. MARKETING PARTNER’S CAMPAIGN.
(a) Placement Monitoring. Media Company 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 Media Company harms the goodwill or reputation of Marketing Partner or disparages or brings Marketing Partner into disrepute, then Media Company shall use commercially reasonable efforts to remove such Campaign promptly following receipt of Marketing Partner's written notice thereof; provided, however, that if Media Company reasonably believes that removal of a Campaign will have a material impact on Media Company’s ability to perform in accordance with the applicable Insertion Order, Media Company may condition such compliance on Marketing Partner providing an extension of the flight dates or other accommodation.
(b) Paused Campaigns. Media Company reserves the right to pause any Campaign that does not meet or satisfy Media Company’s reasonable performance expectations, operational requirements or for any other reason effective upon written notice to Marketing Partner. After notification, Media Company may pause a Campaign for a maximum of five (5) business days during which time Marketing Partner and Media Company will work together to address Media Company’s concerns, including but not limited to testing new Ads and/or changing rates. Media Company will not make changes to original Insertion Order specifications or approved Ads without Marketing Partner’s express written approval. If during or following the pause period Media Company deems, at its reasonable discretion, that a Campaign will not meet minimum performance expectations or operational requirements, Media Company reserves the right to cancel Marketing Partner’s Campaign following one (1) business day written notice to Marketing Partner
(c) Performance Tracking. Marketing Partner acknowledges that, except as otherwise agreed in writing, Media Company will host the Campaigns and provide the tracking solution. Media Company’s tracking count shall be used for all purposes under this P&A Service Order. Media Company 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 Media Company before any advertising or ad-serving will be provided by Media Company and any data collected shall be jointly owned by Marketing Partner and the Media Company. If Marketing Partner removes or manipulates the pixels at any time during a Campaign without express written permission from Media Company, Media Company may suspend performance of a Campaign.
(d) General. Any advertising and marketing rights not specifically granted to Marketing Partner herein are specifically reserved by Media Company. Without limiting the generality of the foregoing, Media Company 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) the use of any Campaign that it deems, in its reasonable discretion, inappropriate or fails to comply with the Advertising Guidelines; (iii) the publication or transmittal of any copy, photograph or illustration of any kind for any reason; (iv) any advertising request or any Campaign that is or can be hosted by any directly or indirectly competitive network; (v) any Campaign which redirects traffic to a website other than the site specifically identified in the Insertion Order or as agreed by the Parties; or (vi) 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 Media Company 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. Media Company shall have no liability to Marketing Partner for failure to place any Campaign on its or any third-party publisher’s network.
9. MEDIA COMPANY DATA.
(a) If Media Company 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 Media Company (collectively, the “Media Company Data”). Marketing Partner shall use, and shall contractually require any Approved Third Party to use, the Media Company 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 Media Company. 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 Media Company in and to the Media Company 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 Media Company Data with any third party without Media Company’s prior written consent. Marketing Partner shall not use, and shall contractually require any Approved Third Party not to use, the Media Company 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 Media Company 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 9, Media Company will suffer irreparable injury. Upon such an event, Media Company 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 9.
(b) From time to time, Marketing Partner or an Approved Third Party may request that Media Company 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 Media Company (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. Media Company 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 9, including without limitation all restrictions on use of Media Company Data. Additionally, if Media Company communicates any additional permitted uses or restrictions on the Fourth Party’s use of Media Company 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 Media Company Service Order. For the avoidance of doubt, any remedies available to Media Company pursuant to this Media Company 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.
10. MEDIA COMPANY’S REPRESENTATIONS AND WARRANTIES. Media Company 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) Media Company shall be responsible for the acts and omissions of Offline Data Processor as if the same were performed by Media Company hereunder.
11. 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 Media Company, to the attention of the General Counsel at 101 N. Wacker Drive, 23rd Floor, Chicago, IL 60606 or by email at generalcounsel@conversantmedia.com. 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.
12. SURVIVABILITY. Notwithstanding termination of this P&A Service Order, any provisions that by their nature are intended to survive, will survive termination.
13. MISCELLANEOUS. The GSA, this P&A Service Order and the related Insertion Order(s) constitute the entire agreement of the Parties with respect to the subject matter and supersede all previous communication, representations, understandings, and agreements, either oral or written, between the Parties with respect to the subject matter of the P&A Service Order and any IO. In the event of any inconsistency between the terms of the P&A Service Order and any IO, the terms of the IO shall prevail. These agreements can only be modified in writing and signed by both Parties. If any provision of this P&A Service Order is held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability will not affect any other provision, and this P&A Service Order will be construed as if such invalid, illegal or unenforceable provision had never been contained herein in regards to that particular jurisdiction.
Revised February 2018