MASTER SERVICES AGREEMENT
Effective Date: August 2, 2018
This Master Services Agreement (hereinafter referred to as the “MSA” or the “Agreement”) is effective as of the above written date and is by Epsilon Data Management, LLC dba Epsilon Local Marketing with an office at 6021 Connection Drive, Irving TX 75039 (with any entity in control of, controlled by, or under common control therewith, “Epsilon“), and Client which executes a SOW referencing this Agreement (the "Client"), hereinafter individually referred to as a “Party” and/or together referred to as the “Parties”.. Epsilon and Client are each referred to individually as a “Party” and collectively as the “Parties” to this MSA.
1. Documents Comprising Agreement. This MSA is a master agreement that governs Epsilon’s provision of services and related deliverables to Client. A statement of work (“SOW”) is any document, which is signed by an authorized representative of each Party, and sets forth the services and related deliverables Epsilon is providing to Client (the “Services”), the terms and specifications that apply to the particular Services, and the fees being charged (the “Fees”). Each SOW serves as a separate agreement for Epsilon to provide Services to Client and will incorporate the terms of this MSA. If there are any terms and conditions in an SOW which conflict with the terms and conditions in this MSA, then the terms and conditions in that SOW will take precedence with respect to the Services provided under such SOW.
2. Payment and Invoicing. In consideration for its provision of the Services, Client will pay Epsilon as follows:
2.1. Fees and Costs. Client will pay Epsilon the Fees in the applicable SOWs. Additionally, Client will reimburse Epsilon for any reasonable expenses incurred by Epsilon during the course of Epsilon’s performance of Services, including but not limited to out-of-pocket production costs, stock imagery, talent, hotel, automobile rental, and other reasonable travel expenses, charges from third-party suppliers (to the extent not otherwise set forth in an SOW), and other types of reasonable incidental expenses and out-of-pocket costs.
2.2. Taxes. The Fees do not include taxes. Client will be responsible for, and agrees to pay, all sales, use, excise, and value-added taxes, or taxes of a similar nature (excluding personal property taxes and taxes based on Epsilon’s income which shall be borne by Epsilon, imposed by the United States, any state or local government, or other taxing authority, on all goods and/or services provided to Client by Epsilon under this MSA. The Parties agree to cooperate with each other to minimize any applicable sales, use, or similar tax and, in connection therewith, the Parties shall provide each other with any relevant tax information as reasonably requested (including without limitation, resale or exemption certificates, multi-state exemption certificates, information concerning the use of assets, materials and notices of assessments). Client agrees to be responsible for paying any tax, penalty, and interest resulting from Client not timely paying the appropriate taxes for Services provided by Epsilon.
2.3. Invoicing and Payment. Epsilon will invoice Client monthly, unless otherwise stated in an applicable SOW. Unless Client notifies Epsilon of its good faith reason to a dispute to any Fees in an invoice, Client will pay Epsilon all amounts within 30 days after the date Client receives an invoice. Any invoice or portion of Fees in an invoice that is subject to a dispute will be paid within 30 days after being resolved. In the event Client fails to make any payments hereunder when due, interest (computed monthly) will be charged on any such unpaid amount at the maximum rate allowed by law from the due date until such invoices are paid in full.
3.1. Confidential Information. In connection with this MSA and the SOWs, a Party (“Disclosing Party”) may disclose to the other Party (“Receiving Party”) information which is commercially sensitive, confidential, and/or proprietary to and/or a trade secret of Disclosing Party (“Confidential Information”). Receiving Party will not intentionally disclose Confidential Information except to its employees, contractors, and agents as required to exercise its rights or perform its obligations hereunder. The terms and conditions of this MSA will be considered Confidential Information of the Parties and will not be disclosed without the other Party’s written consent. For the avoidance of doubt, and except as expressly set forth in an applicable SOW, Client will not provide nor send to Epsilon any sensitive personal information including without limitation the following: government identifiers (such as Social Security numbers or tax ID numbers), driver’s license numbers, account numbers, credit or debit card numbers, personal identification numbers, passwords or PINs, biometric data, answers to security questions, or other personal identifiers, nonpublic personal information, protected health information, and/or any substantially similar information. Should Client provide data of any kind to Epsilon that may be used to identify an individual, such data will be provided to Epsilon via secured transmission (e.g., SFTP). Termination of this MSA will not relieve Receiving Party of its obligations with respect to Confidential Information disclosed pursuant to the terms hereof.
3.2. Return or Destruction. Upon the request of Disclosing Party, Receiving Party will promptly destroy all Confidential Information of Disclosing Party that is in its possession, provided that Receiving Party may retain, but not use, archived versions of such Confidential Information as required by Receiving Party’s data and document retention policies.
3.3. Exclusions. Notwithstanding the foregoing, Confidential Information will not include information which: (a) is or becomes part of the public domain through a source other than Receiving Party; (b) was rightfully known to Receiving Party as of the time of its disclosure; (c) is independently developed by Receiving Party; (d) is subsequently learned from a third party not under a confidentiality obligation to Disclosing Party; (e) is authorized for disclosure by Disclosing Party; or (f) is and only to the extent required to be, disclosed pursuant to a duly authorized subpoena, court order or government authority, whereupon Receiving Party subject to same will provide prompt written notice to Disclosing Party, prior to such disclosure, so that Disclosing Party may seek a protective order or other appropriate remedy; provided that the exclusions set forth in clauses (a) – (d) above will not apply to Epsilon Data (as defined in Section 4.3), which is and will always be deemed Epsilon’s Confidential Information.
3.4. Safeguards. Receiving Party will ensure that reasonable safeguards are in place designed to preclude unauthorized access to Disclosing Party’s Confidential Information, provided that such safeguards are at least equivalent to the greater of those (a) required by applicable law, rule, or regulation, or (b) used by Receiving Party with respect to its own Confidential Information of a similar nature.
4. Proprietary Rights.
4.1. Client Intellectual Property & Data. All intellectual property provided to Epsilon by Client, as well as all data relating to Client’s customers that is provided to Epsilon by Client or by a third party at Client’s direction (collectively “Client Property”) is Client’s Confidential Information and as between Client and Epsilon will be considered owned by Client. Client will be responsible for the accuracy, completeness, and propriety of information concerning its organization, products, services or those of its competitors (including performance data and product claims and comparisons), and for the rights, licenses, and permissions to use, and for the accuracy and propriety of all materials furnished to Epsilon by or on behalf of Client (including advertising, promotional, or marketing materials created by Client or Client’s other agencies) upon which any of Epsilon’s advertising, promotional or marketing materials are based. Client will be solely responsible for any claims related to: (a) instructions or materials that have been provided by Client or its affiliates or its other providers; (b) names, marks, logos, and other indicia or origin that are proposed but which Epsilon does not take beyond the “concept stage,”; and/or (c) the collateral use or repurposing by Client or its third party vendors of materials produced by Epsilon which results in a violation of any law, regulation, or third party right.
4.2. Technology. All code, software programs, processes, methodologies, algorithms, and related know-how and Residual Knowledge (as defined in Section 4.6) developed, created, or used by Epsilon or its agents or third party licensors in connection with the performance of Services hereunder, including, without limitation, any computer programs, software products, processing platforms or other tools, any documentation relating thereto, and any modifications, enhancements, new versions, or derivative works of any of the foregoing, and all trade secrets, copyrights, patents, and other intellectual and proprietary rights therein (collectively, “Technology”), are Epsilon’s Confidential Information and are owned by and remain the property of Epsilon or its third party licensors. Should Client’s services involve access to and use of any Technology, Epsilon grants Client a non-exclusive, non-transferable and revocable license, for and during the term of the applicable SOW, to accesses and use the Technology integrated into the marketing solution for the purpose and term identified in the SOW. This license to use the Technology is not a sale of the Technology.
4.3. Epsilon Data. All data that Epsilon provides for use to its clients, including but not limited to all Epsilon-owned licensed data, the data referred to as Agility, Abacus®, Shopper’s Voice®, or TotalSource Plus® data, MarketView, Bullseye and any third party data Epsilon licenses for or on behalf of its clients, and all information derived from the use of any of the foregoing (collectively, “Epsilon Data”), is Epsilon’s Confidential Information and will remain the property of Epsilon or its third party licensors.
4.4. Licensed Creative Materials. “Licensed Creative Materials” include third party intellectual property which may be incorporated into the Work Product, whereby Epsilon is unable to obtain a blanket assignment of rights. Licensed Creative Materials may include, but are not limited to, original photography, stock photography, fonts, illustrations, and other copyrightable works. Epsilon will inform Client of any restrictions on the use of any Licensed Creative Materials incorporated into the Work Product in the SOW. Client agrees it will abide by the usage restrictions for the Licensed Creative Materials and will release, hold harmless, and indemnify Epsilon for any claims arising out of Client’s non-compliance with such licenses. Specifically, for stock photography, Client shall have the non-exclusive, non-transferable right to use and display the stock photography, graphics, or images, licensed for or on Client’s behalf that are incorporated in the Work Product, only for the contemplated use. All such use is also subject to applicable third party license rights. No other rights to such licensed stock photography, graphics, or images are granted to Client, unless otherwise agreed to by the Parties in an SOW.
4.5. Limitations. Client acknowledges that in receiving Services hereunder, unless specifically stated in the applicable SOW, Client will obtain no rights beyond its pre-existing rights to Client Property. Furthermore, Client will obtain no rights to the Technology, Licensed Creative Materials, or the Epsilon Data beyond the use thereof for the term specified in the applicable SOW. Additional clarification and delineation of various Technology or Licensed Creative Materials components that may encompass an overall Client services solution or any exceptions to ongoing use rights may only be addressed in the individual SOWs and in connection with the specifically negotiated business related terms therein. Client shall not use any exploratory or mock-up materials provided by Epsilon publicly, as such Services may contain third party intellectual property that hasn’t been cleared for use. Should Client wish to use such exploratory Services publicly and in any commercial manner, Client must notify Epsilon and Epsilon must promptly provide Client with any steps and costs required to secure necessary rights.
4.6. Residual Knowledge. Epsilon shall have the right to retain and use any multi-purpose libraries or routines, or development tools that may be provided or used in connection with the Services and any general skills ideas, concepts, know-how and expertise that Epsilon learns, obtains, uses, develops or creates in rendering Services for Client, insofar as such ideas, concepts and know-how are of generic applicability and are acquired and applied without disclosure of any Confidential Information of Client.
4.7. Media Buying. If Epsilon is providing media buying services through one of its third-party suppliers, Client hereby authorizes Epsilon to act as agent on behalf of Client (and to assign such limited agent authority to its third-party suppliers) in the purchasing of advertising and other forms of media and bind Client to media purchases. Client will be responsible for non-cancellable contracts and commitments provided Client has authorized such purchases under an SOW. For all media purchased on Client’s behalf, Client agrees that Epsilon will be held liable for payments only to the extent proceeds have cleared from Client to Epsilon for advertising disseminated in accordance with an SOW. For sums owing, but not cleared to Epsilon, Client agrees to be held solely liable.
5. Client Obligations
5.1. Industry Specific Requirements and Legal Approval. Client will advise Epsilon on any industry specific requirements or prohibitions related to its products and services. Client is solely responsible for reviewing all creative material, offers, and other deliverables for use in the marketplace to ensure compliance with all laws, regulations, consent orders and guidelines applicable to Client’s business or industry.
5.2. Performer and Union Contract Obligations. Client will inform Epsilon if it is a signatory to any performer’s union (SAG-AFTRA, AFM etc.) that covers the production of advertising materials. If Client is a signatory, Epsilon will act in such regard to the production of that material at the direction of the Client. Client will retain full responsibility for adherence to the terms, provisions and payment obligations under such agreements. Client will be responsible for claims asserted by the union or the union’s pension and health funds for non-payment or underpayment of fees due performers in connection with the production and/or use of any materials produced by Epsilon on Client’s behalf regardless of whether such claims arise or are asserted during or after the term of any SOW.
6. Campaign-Specific Terms and Conditions
6.1. Email Marketing Campaigns. If Epsilon is performing an Email Marketing campaign, the additional terms specified in attached Exhibit A will also apply. In the event of any conflict between the terms of this Agreement and the terms of Exhibit A, the terms of Exhibit A will control.
6.2. Target Display Ad Campaigns. If Epsilon is performing a Target Display Ad campaign, the additional terms specified in attached Exhibit B will also apply. In the event of any conflict between the terms of this Agreement and the terms of Exhibit B, the terms of Exhibit B will control.
6.3. Direct Mail Campaigns.
6.3.1. Terms. Any direct mail campaigns specified in an SOW (each, a “DM Campaign”) will include printing, production, setup fees, and delivery to a certified US Post Office (USPS) facility. A DM Campaign shall be deemed complete upon Epsilon obtaining a statement from the USPS verifying the mailing, a bill of lading, or any other evidence that the order has been completed. Epsilon cannot guarantee the USPS delivery schedule. Epsilon is not liable for late, lost, or miss-delivered mail resulting from the actions of third parties. Drop dates are subject to Client’s creative signoff of the Work Product, payment, data extraction, and/or list procurement. Actual mail quantity may vary by +/- 5% due to National Change of Address records, production spoilage, and seeded names.
6.3.2. Rights/Licensing. Client only obtains a limited license for exclusive use for the DM Campaign. Any additional clarification or any exceptions to ongoing use rights may only be addressed in the individual SOW(s) and in connection with the specifically negotiated business related terms therein.
7. Representations and Warranties; Disclaimers.
7.1. Mutual. Each Party represents and warrants to the other that (a) it will comply with all relevant laws in performing its respective responsibilities and exercising its rights under this MSA and the SOWs; (b) it will comply with all applicable privacy laws, anti-corruption and anti-bribery laws; and (c) it is authorized to enter this MSA and the SOWs.
7.2. Epsilon Warranties. Epsilon warrants that: (a) the Services will be performed by personnel possessing the required skills and experience and in a professional and workmanlike manner; (b) the Services will be provided in material accordance with the agreed upon requirements and specifications; and (c) any Epsilon Data provided to Client will be as complete, accurate, and current as is reasonably obtainable in view of Epsilon’s customary method of compilation and the nature and accuracy of Epsilon’s sources.
7.4. Warranty Exclusion. OTHER THAN THE WARRANTIES EXPRESSLY MADE IN SECTIONS 7.1 AND 7.2, EPSILON MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM OR TRADE USAGE,
AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGMENT OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE TECHNOLOGY, THE EPSILON DATA, AND/OR ITS PERFORMANCE OF SERVICES HEREUNDER. EPSILON WILL NOT BE DEEMED TO BE IN BREACH OF ANY REPRESENTATION OR WARRANTY TO THE EXTENT THAT SUCH BREACH RESULTS FROM THE ACT OR OMISSION OF A THIRD PARTY. THE WARRANTIES SET FORTH IN THIS MSA ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TECHNOLOGY, EPSILON DATA, AND/OR SERVICES PROVIDED UNDER THIS MSA OR ANY SOWs. EPSILON PROVIDES NO WARRANTY REGARDING (a) PATENT INFRINGEMENT FOR ANY TANGIBLE WORK PRODUCT PROVIDED BY EPSILON, OR (b) ANY INFRINGEMENT RELATED TO PATENTS OWNED BY A NON-PRACTICING ENTITY (AS COMMONLY UNDERSTOOD IN THE INDUSTRY) WHICH ARE NOT OTHERWISE A COMPONENT OF THE TECHNOLOGY.
8. Limitation of Liability.
8.1. Exclusion of Certain Damages. NEITHER EPSILON NOR CLIENT WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS MSA, ANY SOWS, OR THE SERVICES HEREUNDER, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS MSA OR ANY SOW.
8.2. Limitation of Liability. CLIENT AGREES THAT EPSILON’S TOTAL AGGREGATE LIABILITY FOR ANY
AND ALL DAMAGES WILL IN NO EVENT EXCEED THE AGGREGATE AMOUNT OF FEES PAID TO EPSILON UNDER THE APPLICABLE SOW, EXCLUDING ANY AMOUNTS PAID ON A PASS-THROUGH BASIS. IN THE CASE WHERE THE SERVICES AND DAMAGES ARE RECURRING IN NATURE, THEN EPSILON’S LIABILITY SHALL IN NO EVENT EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR OWED TO EPSILON UNDER THE APPLICABLE SOW DURING THE PRECEDING TWELVE (12) MONTH PERIOD, EXCLUDING ANY AMOUNTS PAID ON A PASS-THROUGH BASIS.
9.1. Indemnity. Each Party will indemnify, defend, and hold harmless the other Party, its affiliates, and its and their employees, principals (shareholders or holders of an ownership interest, as the case may be), and agents from and against any losses, damages, costs, expenses (including court costs and reasonable attorneys’ fees), judgments, assessments, fines, and other liabilities arising out of or resulting from: (a) bodily injury or death of any person or damage to real and tangible personal property directly caused by the gross negligence or willful misconduct of the indemnifying Party, its personnel or agents during the course of performing the Services; (b) any workers’ compensation claims that are made by the employees of the indemnifying Party against the other Party; (c) any third party claims or suits resulting from such Party’s breach of its respective representations and warranties set forth in this MSA or an SOW (except for third party infringement claims, which are covered in Section 9.2 below); and/or (d) use of the Services or any output of the Services other than as expressly authorized herein or in an SOW.
9.2. Infringement Indemnity. Each Party will indemnify, defend (at its sole cost and expense), and hold harmless the other Party, its affiliates, and its and their employees, principals (shareholders or holders of an ownership interest, as the case may be), officers, directors, and agents from and against any losses, damages, costs, expenses (including court costs and reasonable attorneys’ fees), judgments, assessments, fines, and other liabilities arising out of or resulting from any third party claim that the materials provided by such Party (“Materials”) misappropriate or infringe any patent (except as specified in this provision), trademark, copyright, right of publicity, trade secret, or other similar right of any person or entity (an “Infringement Claim”). For clarity, Epsilon’s Materials include, without limitation, the Epsilon Data, Services, and Technology, and Client’s Materials include, without limitation, the Client Property and any documents, data, or other content or materials provided by or on behalf of Client. Notwithstanding the foregoing, a Party shall have no liability for Materials under this Section 9.2 to the extent an Infringement Claim is based upon: (a) the other Party’s combination of any Materials with any other products, services, hardware, software, data or other materials; (b) the use of the Materials other than in accordance with all written instructions and documentation; (c) any patent infringement arising out of any tangible Work Product provided by Epsilon; or (d) any patent infringement related to patents owned by a non-practicing entity (as commonly understood in the industry) which are not otherwise a component of the Technology. In the event that an injunction is obtained against a Party’s use of the Materials hereunder by reason of infringement or an Infringement Claim is sustained in a final judgment, or in the event a Party reasonably believes that use of its Materials may be found to infringe or constitute a misappropriation or be enjoined, then that Party shall, at its option and expense, (i) procure for the indemnified Party the right to continue using the Materials, (ii) replace or modify the Materials so that they become non-infringing (such modifications or replacement shall be functionally equivalent to the original and meet all applicable specifications set forth in the applicable SOW) and make any modifications to any deliverables, Service, Technology, or Epsilon Data necessitated by such replacement or modification or (iii) terminate the applicable SOW by providing at least sixty (60) days’ notice to the other Party. If Epsilon terminates an SOW pursuant to the foregoing clause, Epsilon shall refund any prepaid amounts not yet earned under the applicable SOW.
9.3. Procedures. To receive the foregoing indemnities, the Party seeking indemnification will promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying Party’s expense) and grant the indemnifying Party the sole and full authority to defend the claim or suit; provided, however, the indemnified Party may participate in the defense of such claim or suit at its expense. The indemnifying Party will have no obligation to indemnify the indemnified Party under any settlement made without the indemnifying Party’s written consent (which will not be unreasonably withheld). The indemnifying Party will not settle any claim or suit under this Section 9 on the indemnified Party’s behalf without first obtaining the indemnified Party’s written permission (which will not be unreasonably withheld). Each Party will promptly communicate to the other any offer received by or proposed to be made in settlement of any claim or suit that is subject to indemnification under this Section 9, and each Party will promptly and reasonably consider any such settlement offer or proposal that the other Party desires to accept or make.
10. Insurance. Epsilon will place and maintain with responsible insurance carriers, policies, and amounts of insurance as set forth herein. Upon Client’s request, Epsilon will provide Client with a Certificate of Insurance naming the Client as an additional insured on the appropriate certificates and evidencing the coverage as specified herein.
Comprehensive General Liability: $1,000,000 per occurrence and $2,000,000 general aggregate
Excess or Umbrella: $1,000,000 per occurrence and $2,000,000 annual aggregate
Errors & Omissions/Professional Liability: $2,000,000 per claim and $2,000,000 general aggregate
Employee Dishonesty/Crime: $1,000,000 per occurrence and $1,000,000 annual aggregate
Workers Compensation: Statutory limits for the states in which Services are performed
11. Term and Termination.
11.1. Term of MSA. This
MSA will become effective on the Effective Date, and will remain effective until terminated in accordance with this Section. This MSA may be terminated for any reason at such time as no SOWs are in effect hereunder.
11.2. Termination of SOWs.
(a) In the event a Party breaches any of the material provisions contained in this Agreement or any SOW, the non-breaching Party may terminate outstanding SOW(s) by providing 30 days’ prior written notice to the breaching Party, which notice will set forth a description of the breach. If the breach is cured to the reasonable satisfaction of the non-breaching Party within the above-mentioned 30-day period, the non-breaching Party will provide notice to the other Party of its satisfaction with the cure and the SOW will continue in effect in accordance with its terms as if no breach had occurred.
(b) In the event that: (i) a Party ceases conducting business in the normal course; (ii) a Party becomes insolvent; (iii) a Party admits in writing its inability to meet its debts generally as they become due; (iv) a Party makes a general assignment for the benefit of creditors; (v) a Party suffers or permits the appointment of a receiver, trustee, liquidator, or conservator for its business or assets; (vi) a Party avails itself of, or becomes subject to, any proceeding under the Federal Bankruptcy Act or any other statute of any state relating to insolvency or the protection of rights of creditors; or (vii) proceedings are commenced for the dissolution, winding-up, or liquidation of a Party, then, at the option of the other Party, all applicable SOWs will terminate immediately.
(c) Any other right to terminate a SOW prior to the expiration of its term may be addressed only in the applicable SOW and in connection with the specifically negotiated business related terms therein.
11.3. Effect of Termination. In the event of a termination of an SOW: (a) Client will pay Epsilon the full amount of the final Epsilon invoice under such SOW within 15 days after receipt. Payment of this final invoice will not bar any remedy, legal or equitable, otherwise available to Epsilon; and (b) Client will direct Epsilon in writing as to the date (to be at least 30 days but no longer than 90 days after such termination), upon which Epsilon may delete all Client data maintained in any Epsilon Technology system hosted by Epsilon. In addition, within 30 days after such termination each Party will delete all other Confidential Information of the other Party and all information and other materials derived therefrom, provided that the Receiving Party may retain, but not use, archived versions of such Confidential Information as required by Receiving Party’s data and document retention policies; and (c) all obligations of the Parties hereunder will cease, except such obligations that survive termination hereunder pursuant to Section 11.4.
11.4. Survival. Notwithstanding anything herein to the contrary, all terms logically construed to survive the term of this MSA will survive.
12. Any notices required or permitted pursuant to this MSA will be in writing and deemed to have been sufficiently given or served for all purposes when presented personally or sent by overnight courier or registered mail to the signatories herein at the respective addresses as set forth in this MSA. Notices for Epsilon should be sent to: Attn: General Counsel, 6021 Connection Drive, Irving, TX 75039, with a copy to email@example.com. Notices for Client should be sent to the address specified in the SOW.
13. Force Majeure. No Party will be liable to the other in connection with any failure or delay in performance of this MSA if such failure or delay arises out of causes beyond the control and without the fault of such Party (a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the disabled Party will promptly and in writing advise the other Party if it is unable to perform due to such Force Majeure Event, the expected duration of such inability to perform, and of any developments (or changes therein) that appear likely to affect the ability of the disabled Party to perform any of its obligations in whole or in part.
14. Subcontractors. Each Party shall have the right to utilize subcontractors to fulfill its obligations in this MSA or an SOW, provided that each Party shall remain fully liable for the acts or omissions of its own subcontractors. Client will be solely responsible and Epsilon will not be obligated to enter into any contractual relationship with a subcontractor or other third party provider at the direction of Client or any of Client’s customers or retailers. Client will be solely responsible for all contractual relationships with its customers, retailers and its retailer mandated service providers. If Client’s third party provider fails to perform, the Client should look solely to the third party, not Epsilon, unless Epsilon’s negligence is solely responsible for the failure.
15. Non-Interference with Employees. The Parties acknowledge that each Party’s continuing relationship with their respective employees is an essential part of its business. Accordingly, for the Term of this Agreement, plus twelve (12) months thereafter, unless it has received the other Party’s prior written consent, both Parties agree not to solicit for employment or to hire, or to enter into any consultancy or similar agreement with any person who was an employee of the other Party during the Term of this Agreement and who was involved in any way in the provision and/or receipt of Services under this Agreement. Nothing in this Section 15 shall prevent a Party from hiring an individual who responds to a publically available job posting.
16. Miscellaneous. The section headings to this MSA do not form a part of it and will not affect or limit the meaning of the paragraphs. Client will, if asked by Epsilon, reasonably consider participating in a written press release with Epsilon regarding the Services provided hereunder. No waiver by either Party of any default hereunder by the other will operate as a waiver of any other default or of a similar default on a future occasion. No waiver of any term or condition hereof by either Party will be effective unless the same is in writing and signed by both Parties. In the event that any provision of this MSA (other than a provision which goes to the essence of the consideration for this MSA) is declared invalid, unenforceable, or void, to any extent, by a court of competent jurisdiction, the remainder of this MSA and the application thereof will not be affected thereby, but rather will be enforced to the greatest extent permitted by law. Epsilon is an independent contractor of Client, and nothing herein will be construed as creating a joint venture, partnership, or similar relationship This MSA is governed by and will be construed in accordance with the laws of the State of Texas, without application of its choice of law provisions. All disputes arising out of or relating to the Agreement will be brought, heard, and determined exclusively in the Federal District Court in the Northern District of Texas, Dallas Division or any state court of competent jurisdiction within Dallas County, TX. Both parties consent to personal and subject matter jurisdiction and venue in such courts and waive and relinquish any right to assert that any action instituted by the other in any such court is in the improper venue or should be transferred to a more convenient forum. The Parties acknowledge that all orders issued by the forum court, including injunctions and other decrees will be binding and enforceable in all jurisdictions and countries. This MSA may not be modified except as mutually agreed to in writing, signed by an authorized representative of each Party. This MSA, together with the SOWs, supersedes all prior agreements, communications, representations, and understandings, either oral or written, between Epsilon and Client with respect to the subject matter contained herein. All terms and conditions on any Client-issued purchase order, order acknowledgment, or other document in connection with this MSA will be deemed deleted and of no force or effect. Either Party will have the right to assign all rights and liabilities hereunder without the other Party’s consent to any person or entity that (a) acquires all or substantially all of its operating assets, or (b) results from a merger or reorganization pursuant to any plan of merger or reorganization, provided however, that any such assignment will give the non-assigning Party a right to terminate this MSA upon 30 days’ prior written notice should the assigning Party make such assignment to a competitor of the non-assigning Party. Further, Epsilon may assign this MSA to an affiliate without the consent of Client. Any other assignments by either Party, in whole or part, will require the prior written consent of the other Party, without which such assignments are null and void. This MSA is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns. This MSA may be executed in two or more counterparts, each of which will take effect as an original, and all of which together will evidence one and the same instrument.
Additional Email Marketing Campaign Terms and Conditions
a. If requested in any applicable SOW, Epsilon will create a prospect list of names and postal addresses based upon mutually agreed upon criteria and match such list (whether itself or through its email acquisition provider) to files of email addresses and send Client’s email campaign (“Email Campaign”) to consumers for which Epsilon has matched an email address.
b. Epsilon will perform the following: (i) set up creative in the deployment system; (ii) provide a test message for Client’s review and approval; (iii) make revisions if requested by Client; (iv) confirm that the creative contains a live opt-out mechanism; and (v) launch Client’s Email Campaign upon receipt of approval by Client via email.
c. Epsilon will provide:
i. Informational program reports post-launch. Program reports include open, click thru and delivered rates. Daily and custom reports are available at an additional charge.
ii. Notice of opt-outs received by Epsilon in compliance with the CAN-SPAM Act of 2003.
iii. Epsilon shall track and report on the quantity of delivered emails and Epsilon’s tracking reporting shall be the sole and definitive tool used to measure the delivery of emails sent. No other measurement or usage statistics (including those of an approved third party ad server) shall be accepted by Epsilon, unless such third party is engaged with Epsilon to perform such services.
d. Client acknowledges that Epsilon may work in conjunction with its email acquisition provider, to provide the Services set forth in a SOW.
2. Client Materials.
a. Client shall provide or approve all information and/or items required for Epsilon to use to properly set up and execute the Services, including:
i. HTML Creative;
ii. Text version (if applicable);
iii. Suppression file(s);
iv. Seed list (if applicable)
v. Postal address of Client to include in creative if not already included;
vi. “From” line;
vii. “Subject” line; and
viii. Any fields necessary for personalization of Client’s Email Campaign.
b. Epsilon does not recommend usage of an email creative comprised solely or primarily of image files. In the event Client elects to use this type of creative, Client understands and agrees that Epsilon shall not be held liable for delivery or blocking issues and that no make-goods, re-blasts, credits, or refunds shall be issued.
c. Epsilon shall have the right, but not the obligation, to review and approve the form and content of Client’s advertisements or other content of the Email Campaign provided to Epsilon by or on behalf of Client as well as the right to refuse to send any such email should Epsilon deem, in its sole discretion, to be spam or not compliant with applicable law or inappropriate for sending. Epsilon shall have the right, in order to comply with applicable laws, to terminate the delivery of any Email Campaign at any time without liability to Client except for a refund or credit of amounts previously paid for records that have not yet been fulfilled, provided that Epsilon shall notify Client in writing promptly upon its decision to terminate such delivery.
d. Client hereby grants Epsilon and its service providers a non-exclusive, worldwide license to copy and distribute the Email Campaign pursuant to the applicable SOW and solely for the purposes of that SOW.
3. Non-Disclosure of Source. Client shall not name Epsilon or its email acquisition providers in any advertisements of any kind relating to the Services, and shall not otherwise disclose Epsilon or its email acquisition providers to any third party as the source of the email addresses unless Client first obtains the express and written permission of Epsilon. This restriction shall not prevent Client: (i) from responding to inquiries from individuals who are the consumer subjects to whom the Email Campaign was sent pursuant to the applicable SOW; or (ii) from responding to a subpoena or other specific order of a court of appropriate jurisdiction. In the latter event, Client will provide written notice to Epsilon prior to such disclosure unless prohibited by law.
4. Remedies; Disclaimer: Epsilon’s sole obligation and Client’s sole remedy with respect to Email Campaigns is the correction of any errors in an Email Campaign which are made known to Epsilon by written notice from Client describing the errors in detail; provided, however, Client acknowledges that some corrections of errors shall be dependent on the availability of data from the source of the applicable data. EPSILON MAKES NO WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM OR TRADE USAGE, WITH RESPECT TO THE EMAIL SERVICES PERFORMED HEREUNDER, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. Limitations of Liability: EPSILON’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL LOSSES, DAMAGES, OR INJURIES TO CLIENT OR ANY THIRD PARTY ARISING OUT OF ANY ACTS OR OMISSIONS OF EPSILON ARISING FROM OR IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED AS PART OF AN EMAIL CAMPAIGN, REGARDLESS OF THE CAUSE OF THE LOSS, DAMAGE, OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, WILL NEVER EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR OWED TO EPSILON UNDER THE APPLICABLE SOW, EXCLUDING ANY AMOUNTS PAID ON A PASS-THROUGH BASIS.
6. Content / Email List Practices
a. Client shall be responsible for (i) handling all inquiries and complaints of any type or nature from its email subscriber lists, (ii) providing (either directly or through designated partners) accurate and complete information concerning Client’s organization, products, services or those of its competitors’ (including performance data and product claims and comparisons); and (iii) providing to Epsilon all required labeling, privacy notices and other legal copy as required by applicable law, rule or regulation including in relation to the dissemination and publication of Client’s advertising, promotion, sweepstakes, transactional or other similar materials, as approved by Client’s legal compliance review process.
b. Client shall be responsible for complying with all laws applicable to its emails, including those related to acquiring consents to send emails, the content of the emails and its email deployment practices. Such applicable laws include but are not limited to those pertaining to intellectual property rights, the CAN-SPAM Act of 2003, CASL (if requirements provide for email to Canadian residents) publicity/privacy rights, anti-corruption or anti-bribery laws, or other applicable laws, statutes, rules or regulations of the United States and of those of any jurisdiction into which any email addresses are collected or emails are sent.
c. Client acknowledges that CAN-SPAM Act of 2003 prohibits the transmission of unsolicited messages to unknown individuals in bulk, or to individuals who have opted out of receiving such messages or content. Epsilon may take remedial action should Client violate CAN-SPAM and such remedial action which may include the suspension of Services provided under this SOW. Epsilon will provide prompt notice to Client prior to such suspension and will work with Client to resolve issues and to restore the Services. Epsilon shall have the right, but not the obligation, to monitor at any time, for any reason at its sole discretion, all material and content in the messages, content or customer information in order to determine compliance with the Agreement, applicable SOW or applicable law; however, Epsilon shall not be responsible for, nor shall it have any obligation to, monitor any material and content in the messages, content or customer information.
7. Internet Service Providers Role: Client agrees to follow email standards and practices that are promulgated by the leading Internet Service Providers (“ISPs”). Client acknowledges that failure to follow such practices could lead to Client being ‘blacklisted’ by such ISPs or other leading companies overseeing such email practices. Client further agrees that should any blacklisting of Client occur, Epsilon will provide Client with notice and may in its discretion suspend further email deployment until such matter is satisfactorily resolved. Upon Client’s request, Epsilon will assist Client, at the hourly rates set forth herein, in the correction, resolution and prevention of this type of matter. Blacklisting typically occurs due to the particular content or email list practices used by a Client. The result of an IPS blacklisting Client could impact Epsilon’s delivery of email for other clients and, therefore, temporary suspension while the matter is resolved is necessary.
8. Unsubscribes: Client will ensure that Epsilon receives ‘unsubscribe’ files relating to such lists at least twenty-four (24) hours prior to the scheduled mailing of such lists. Client acknowledges and agrees that the email deployment platform(s) will only automatically capture and process those unsubscribes and/or replies to email for those emails that were deployed through the platform. Unsubscribes that Client captures in other places will need to be sent to Epsilon by Client (or their other providers) using an established process to do so.
9. Use of Tags / Cookies Disclosure:
b. Client acknowledges that the email deployment platform will implement one or more Tracking Technologies in Client’s emails which may enable Epsilon to collect a user’s interactions with the email message and certain online browsing information. Epsilon (and its affiliate, Conversant) will use the foregoing information that it collects to improve any of its personalization, and other marketing capabilities. The Parties acknowledge that the foregoing information collected by Epsilon is not considered Client data or Client owned data.
10. Client’s Customers: Client acknowledges that it is primarily responsible for handling customer services and abuse complaints related to its emails or its business, whether from individuals or third parties such as governmental regulatory agencies or ISPs.
Target Display Ad Additional Terms and Conditions
The standard campaign reports will be provided will be in a mutually agreed upon format.
Advertising Choices Icon / Link
Epsilon requires the Ad Choices icon with the linking ability to http://www.youradchoices.com/ for the Target Display Ads (“Ads”) it places. As such, Epsilon will include the icon and the link above, to the Ads Client provides to Epsilon for display.
Ad Site Requirements
Client shall be responsible for ensuring that any Ad provided by the Client to Epsilon is in accordance with any content limitations, technical specifications, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the website on which the Ads are to appear), and any other relevant editorial or advertising policies, required licenses, consents or approvals, and applicable laws. The Parties may refer to the Interactive Advertising Bureau for guidance in the event of any concern or question on the foregoing matters.
Cookie Matching & Retargeting Process
Cookie Matching. In order to perform the cookie matching process that may be required to provide Ad delivery services, Epsilon will provide Client personally identifiable information (“PII”) data securely via SFTP to Epsilon’s contracted third party cookie matching partner for the for the purpose of matching the online campaign audience to an on-line cookie. All Client PII data provided to the contracted third party will be destroyed upon completion of the cookie matching process.
Email Retargeting. As part of an email retargeting effort, Client will be required to place a tagged image in its email(s) such that when the image is opened, a call is made to Epsilon so that Epsilon can place a cookie on the browser of such individual and/or call other third parties to do the same. If Client fails to include such tag in the manner directed by Epsilon, Epsilon will not be able to conduct email retargeting as agreed upon.
Site Retargeting. As part of a site retargeting effort, Client will be required to place an HTML tag in its website(s) such that when the web page is rendered, a call is made to Epsilon so that Epsilon can place a cookie on the browser of such individual and/or call other third parties to do the same. If Client fails to include such tag in the manner directed by Epsilon, Epsilon will not be able to conduct site retargeting as agreed upon.