MASTER SERVICES AGREEMENT
Effective Date: January 8, 2016
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 Statement of Work referencing this Agreement (the "Client"), hereinafter individually referred to as a “Party” and/or together referred to as the “Parties”.
WHEREAS, Epsilon agrees to provide, and Client agrees to receive from Epsilon, all of the services and deliverables described in this MSA or in the Statement(s) of Work (as such term is hereinafter defined).
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants contained in this MSA, the Parties hereto, intending to be legally bound, agree as follows:
1. DOCUMENTS COMPRISING ENTIRE AGREEMENT AND DEFINITIONS
The entire Agreement by and between the above-referenced Parties is comprised of the following documents:
1.1 Master Services Agreement. The MSA is a master agreement that governs the terms and conditions under which Epsilon will provide services and related deliverables to Client. The MSA becomes effective on the date the Client signs the corresponding SOW and, unless otherwise stated in the SOW, remains effective so long as any Statement of Work is in effect.
1.2 Statement(s) of Work. A “Statement(s) of Work” and/or an “SOW(s)” are any document, which are signed by an authorized representative of both Parties, which set forth the services and related deliverables Epsilon is providing to Client (the “Services”) and the fees being charged (the “Fees”). Each SOW shall be governed by the terms and conditions of this MSA. There may be more than one (1) SOW under this MSA for different Services and Fees agreed upon by the Parties. If there are any terms and conditions in a SOW(s) which are inconsistent or differ from the terms and conditions in this MSA, then the terms and conditions in that SOW shall take precedence, for purposes of the Services specified in that SOW, over any inconsistent term or condition in this MSA. Each SOW, while governed by the terms and conditions of this MSA, shall serve as a separate agreement for Epsilon to provide services to Client, and shall set forth the term and services specifications that apply to the particular services set forth in the SOW.
2. FEES AND CHARGES
In consideration for the Services provided by Epsilon hereunder, Client shall pay Epsilon, or reimburse Epsilon for, the Fees, expenses, third party Supplier charges, and taxes described herein and further described in the applicable SOW:
2.1 Fees. Client will pay to Epsilon the Fees enumerated in the applicable SOW(s) as such SOW(s) may be supplemented or amended from time to time.
2.2 Charges and Expenses Incurred by Epsilon.
(a) Third Party Supplier Charges. Client acknowledges that Epsilon may contract with, certain third party suppliers (the "Suppliers"), which provide goods, materials or services in connection with Epsilon’s delivery of Services and deliverables hereunder. Unless otherwise identified in a SOW or otherwise agreed to in writing, all of the Fees and Charges identified in a SOW will be inclusive of Third Party Supplier Charges.
(b) Miscellaneous Out-of-Pocket Expenses. Client agrees further to reimburse Epsilon for any reasonable expenses or charges incurred by Epsilon during the course of Epsilon’s performance of Services hereunder, including but not limited to, shipping, disk preparation costs (if any), storage, hotel, automobile rental and other reasonable travel expenses and other types of reasonable incidental expenses and out-of-pocket costs.
2.3 Taxes. The fees set forth in SOWs do not include taxes. Client will be responsible for, and agrees to pay, all applicable sales, use, excise, personal property and value added taxes, or taxes of a similar nature (excluding personal property taxes on items owned and used exclusively by Epsilon and taxes based on Epsilon’s net income which will be borne by Epsilon), imposed by any federal, state, provincial, or local government, or other taxing authority on all items, goods and/or services being paid for by Client to Epsilon under this Agreement. The parties agree to cooperate with each other to minimize any applicable sales, use, value added, withholding or similar tax and, in connection therewith, the parties will provide each other with any relevant tax information as reasonably requested (including, without limitation, resale or exemption certificates, multi-state exemption certificates, value added tax numbers, 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 goods and/or services provided by Epsilon.
3. PAYMENT SCHEDULE FOR FEES AND CHARGES
3.1 Invoicing. Epsilon shall invoice Client for all fees as set forth in the applicable SOW(s) and/or any amendments thereto. Client shall pay Epsilon the entire amount billed as set forth in the applicable SOW(s) and/or any amendments thereto.
3.2 Interest. In the event Client fails to make any payments of charges or fees billed hereunder sixty (60) days from the invoice date, interest (computed monthly) shall be charged on any such unpaid, undisputed amount at a rate of 12% per annum from the due date until such invoices are paid in full.
4.1 Definition of Confidential Information. In Epsilon’s providing Services to Client, and in Client’s receiving Services from Epsilon, pursuant to this Agreement, each Party may disclose, whether disclosed orally, in writing, or by other means, to the other Party information which is either marked or treated as confidential or proprietary, or a trade secret by the disclosing Party or is of such a nature that a reasonable person in similar circumstances would consider it to be confidential based on industry standards or prudent business judgment (“Confidential Information”).The receiving Party of any material so identified shall not disclose the Confidential Information to any third party, except in accordance with the provisions of this Section 4, and shall exercise the same degree of care in safeguarding and protecting the confidentiality of the disclosing Party’s Confidential Information that the receiving Party exercises with respect to its own Confidential Information, but in no event shall exercise less than reasonable efforts. In addition to any materials Epsilon may identify as Confidential Information, Epsilon also deems its Technology, as defined in Section 5 herein, as Confidential Information and said property shall be safeguarded as such by Client.
4.2. Exclusions to Confidential Information. Notwithstanding the foregoing, Confidential Information of a Party shall not include information which: (i) is at the time f its disclosure or thereafter becomes part of the public domain through a source other than the receiving Party; (ii) was rightfully known to the receiving Party as of the time of its disclosure, (iii) is independently developed by the receiving Party without reference to or reliance upon the disclosing Party’s Confidential Information; (iv) is subsequently learned from a third party not under a confidentiality obligation to the disclosing Party; or (v) is and only to the extent required to be, disclosed pursuant to a duly authorized subpoena, court order or government authority, whereupon the Party subject to same shall provide prompt written notice to the other Party, prior to such disclosure, so that such other Party may seek a protective order or other appropriate remedy.
4.3 Use and Destruction. The Receiving Party shall not retain any rights to any of the disclosing Party’s Confidential Information, and shall not use or disclose said Confidential Information for any purpose other than to provide or receive Services hereunder, as the case may be; to further the business relationship between the Parties; or to evaluate a possible future relationship between the Parties. On the request of the disclosing Party, the Receiving Party shall promptly destroy all Confidential Information of the Disclosing Party that is in the possession of the receiving Party, provided that the Receiving Party may retain, but not use, archived versions of such Confidential Information for a period of up to twenty-four (24) months thereafter, subject to the Confidential Information obligations of this Section 4 during this period.
4.4 Reasonable Safeguards. The Receiving Party will ensure that reasonable safeguards are in place designed to preclude unauthorized access to the 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 the Receiving Party with respect to its own Confidential Information.
4.5 Terms are Confidential. The terms and conditions of this Agreement shall be considered Confidential Information of the Parties and shall not be disclosed without the other Party’s written consent.
4.6 Survival of Confidentiality. The termination of this Agreement or any business relationship between, or involving, both Parties, shall not relieve either Party of its obligations with respect to Confidential Information disclosed pursuant to the terms hereof.
5. PROPRIETARY RIGHTS
5.1 Work Product. Except as excluded in Section 5.2 and 5.3, all information, reports or other tangible goods generated by the Technology (as defined in Section 5.2) or created specifically for Client as part of the Services and as identified specifically in an applicable SOW as a deliverable (collectively, the “Work Product”) are Client Confidential Information and upon Client’s payment therefore, shall become the property of Client. In addition, all data relating to Client’s customers that is provided to Epsilon by Client or by a third party at Client’s direction is Client Confidential Information and as between Client and Epsilon shall be considered owned by Client.
5.2 Technology. All code, software programs, processes, methodologies, algorithms, and related know-how and residual knowledge developed, created, or used by Epsilon, 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 named on an SOW, and any documentation relating thereto including any modifications, enhancements, new versions or derivative works thereof, and all trade secrets, copyrights, patents and other intellectual and proprietary rights therein (collectively referred to as the “Technology”),are Epsilon Confidential Information and are owned by and remain the property of Epsilon or its third party licensor(s).
5.3 Data. All data that Epsilon provides for use to its clients including all Epsilon-owned licensed data, the data referred to as Abacus data or Target Source data, and any third party data Epsilon licenses for or on behalf of its clients and all information derived from using any of the foregoing (collectively, “Epsilon Data“) is Epsilon Confidential Information and shall remain the property of Epsilon or its third party licensor(s).
5.4 No Additional License. Client acknowledges that in receiving Services hereunder, Client shall obtain no rights to the Technology or the Epsilon Data beyond the use thereof for the term specified in the applicable SOW.Any additional clarification and delineation of various Technology components that may encompass an overall Client services solution 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.
5.5 Residual Knowledge. Notwithstanding anything in this Agreement to the contrary, 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 or proprietary information of Client.
5.6 ClientData. Client and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to the Client Data, including all Intellectual Property Rights therein. Epsilon shall have no right or license to use any Client Data except solely during the Term of the Agreement to the extent necessary to provide the Services to Client and its customers. In addition, all data relating to Client’s customers that is provided to Epsilon by Client or by a third party at Client’s direction is Client Confidential Information and as between Client and Epsilon shall be considered owned by Client.
6. DIRECT MAIL CAMPAIGNS
6.1 Terms.All campaigns include printing, production, setup fees, and delivery to a certified US Post Office facility.An order shall be deemed complete upon Seller 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 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 Creative Signoff, Payment, Data Extraction, and/or List Procurement. Actual mail quantity may vary by +/- 5% due to NCOA, production spoilage and seeded names.
6.2 Rights/Licensing.Client shall obtain no rights to ownership of the creative aspects of the mailer beyond the use thereof for the campaign specified in the applicable SOW.Client only obtains a limited license for exclusive use for thecampaign specified in the applicable SOW.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. TERMS CONTROLLING TARGET DISPLAY AD CAMPAIGNSIf Client purchases a Target Display Ad campaign, the terms specified in the attached Exhibit A shall apply.
8. TERMS CONTROLLING EMAIL ACQUISITIONCAMPAIGNSIf Client purchases an Email Acquisition campaign, the terms specified in the attached Exhibit B shall apply.
9. LIMITATION OF LIABILITY
9.1 LIMITATION ON INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES. NEITHER EPSILON NOR CLIENT WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES HEREUNDER, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT.
9.2 LIMITATION ON DIRECT DAMAGES FOR EPSILON. EXCEPT FOR THE DAMAGES CAUSED BY A BREACH OF THE TERMS SET FORTH IN SECTION 4 (“CONFIDENTIALITY”), CLIENT AGREES THAT EPSILON’S AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES CLIENT PAID OR OWED TO EPSILON, UNDER THE APPLICABLE SOW, FOR THE ONE-TIME SERVICE ERROR CAUSING THE DAMAGES, 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.
9.3 LIMITATION ON DIRECT DAMAGES FOR CLIENT. EXCEPT FOR THE DAMAGES CAUSED BY A BREACH OF THE TERMS SET FORTH IN SECTION 4 (“CONFIDENTIALITY”), EPSILON AGREES THAT CLIENT’S LIABILITY FOR ANY AND ALL DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES, NON-CANCELABLE COSTS OR OTHER AMOUNTS AS CLIENT AGREED TO PAY EPSILON UNDER THE APPLICABLE SOW.
10. TERMINATION; EFFECT OF TERMINATION
10.1 Termination of MSA. Upon thirty (30) days prior written notice, this MSA may be terminated by any party for any reason at such time as no SOW(s) are in effect hereunder.
10.2 Termination of SOW(S).
(a) In the event that the other Party has breached any of the material provisions contained inan applicable SOW, the non-breaching Party may terminate such SOW by providing thirty (30) days prior written notice to the Party committing the breach, which notice shall 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 thirty (30) day period, the SOW shall continue in effect in accordance with its terms as if no breach had occurred.
(b) In the event that either Party shall: (i) cease conducting business in the normal course;(ii) become insolvent; (iii) admit in writing its inability to meet its debts generally as they become due; (iv) make a general assignment for the benefit of creditors; (v) suffer or permit the appointment of a receiver, trustee, liquidator or conservator for its business or assets; (vi) avail itself of, or become 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 either Party, then, at the option of the other Party, all applicable SOW(s), shall terminate immediately.
10.3 Events upon Termination. In the event of a termination of an SOW:
(a) Client shall pay Epsilon the full amount of the final Epsilon invoice under such SOW within fifteen (15)days after receipt. Payment of this final invoice shall not bar any remedy, legal or equitable, otherwise available to Epsilon;
(b) Client shall direct Epsilon in writing as to the date (to be at least sixty (60) days after such termination), upon which Epsilon may delete all Client data maintained in any Epsilon Technology system hosted by Epsilon. In addition, within sixty (60) days after such termination each Party shall delete all other Confidential Information of the other Party and all information and other materials derived there from, provided that the Receiving Party may retain, but not use, subject to all surviving Confidentiality provisions, archived versions of such Confidential Information for a period of up to twenty-four (24) months thereafter; and
(c) All obligations of the Parties hereunder shall cease except such obligations that survive termination hereunder pursuant to Section 11.6(Survival) herein.
11.1 Headings. The section headings to this MSA do not form a part of it, but are for convenience only and shall not affect or limit the meaning of the paragraphs.
11.2 Force Majeure. No Party to this MSA shall be liable to the other by reason of any failure or delay in performance of this MSA in accordance with its terms if such failure or delay arises out of causes beyond the control and without the fault of such Party. Such causes may include, but are not limited to: acts of God or of the public enemy, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unavailability of energy resources, riots or war, or any unusually severe weather conditions. In the event of any force majeure occurrence, the disabled Party shall promptly and in writing advise the other Party if it is unable to perform due to a 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.
11.3 Governing Law. This MSA and the SOW(s) will be governed by and construed in accordance with the laws of the State of Texas without application of its choice of law provisions.
11.4 Modifications; Entire MSA. This Agreement may be modified only (i) by a mutual agreement in writing, signed by an authorized representative of each Party; or (ii) Epsilon may modify and update the terms of this MSA from time to time. Client will receive notice of any material revisions or modifications to this MSA thirty (30) days prior to the modifications becoming effective. By refusing to object to the notified modifications and continuing to use Epsilon’s Services following receipt of such notice, Client consents to the revised or modified terms of this Agreement. This MSA shall supersede 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 documents in connection with the Services herein shall be deemed deleted and of no force or effect.
11.5 Relationship of Parties; Subcontractors. Epsilon is an independent contractor of Client. Nothing herein shall be construed as creating a joint venture, partnership or similar relationship. Each Party shall have the right to utilize subcontractors to fulfill its obligations in this Agreement or applicable SOW; provided that, each Party shall remain fully liable for the acts or omissions of its own subcontractors.
11.6 Survival. Notwithstanding anything herein to the contrary, all terms logically construed to survive the term of this MSA shall survive.
11.7 Assignment. Either Party shall have the right to assign all rights and liabilities hereunder to any Person or entity that: (i) acquires all or substantially all of its operating assets, or (ii) results from a merger or reorganization pursuant to any plan of merger or reorganization, provided however, that any such assignment shall give the non-assigning Party a right to terminate this MSA upon thirty (30) days’ written notice should the assigning Party make such assignment to a competitor of the non-assigning Party. Notwithstanding the previous sentence, Epsilon may assign this MSA to an affiliate without consent of Client.Any other assignments by either Party, in whole or part, shall require the prior written consent of the other Party without which such assignments are null and void. This MSA shall inure to the benefit of and be binding upon the Parties and each Party’s respective successors, permitted assigns and legal representatives. This MSA shall be binding upon and inure to the benefit of the Parties hereto and each Party’s respective successors and permitted assigns.
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 Ads it places. As such, Epsilon will include the icon and the link above, to the Ads you provide 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 Site 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 (IAB) 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 Display Ad delivery services, Epsilon will provide Client 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 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 Site(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.
Email Marketing Obligations
a. Deployment of an email campaign using Client’s creative advertisements (the “Email Campaign“).Epsilon will create a prospect list of names and postal addresses based upon mutually agreed upon criteria, match, whether itself or through its email acquisition provider, such list to files of email addresses, and send Client’s 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; (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. If there are no issues requiring resolution, Epsilon shall deploy Client’s Email Campaign after receipt of final approval from Client.
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. In the event that Epsilon is hosting Client’s opt-out mechanism, at ten(10) days post-launch, Epsilon will provide Client with a copy of email addresses that have opted-out from receiving further emails from Client. Opt-outs are removed within seventy-two (72) hours of the request. These addresses will be provided to Client for suppression in compliance with the Can-Spam Act of 2003. In the event that Client hosts the opt-out mechanism, Client shall provide Epsilon with a copy of email addresses that have opted-out from receiving further emails from Client. These addresses will be provided to Epsilon for suppression 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 an Order Form.
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 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 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 and no material changes shall be made to any advertisement or content of the Email Campaign without Epsilon’s prior written consent. Client shall submit a sample creative for review and approval by Epsilon. 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 immediately 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 this SOW and solely for the purposes of this SOW.
- 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 this 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.
- Can Spam Act. The Parties respective responsibilities for complying with the Can-Spam Act are as follows:
b. Client shall provide creative(s) that include a clear and conspicuous notice of opportunity and a functioning email address or other Internet-based mechanism to allow recipients to decline to receive further commercial email messages from Client.
c. Opt-out URL or email must remain active for a minimum of thirty (30) days from launch of Email Campaign.
d. Client must provide a physical or post office box address for those recipients wishing to opt-out through that channel.
e. Epsilon shall provide a copy of the list level opt-outs with the programs final report.
f. Client agrees to honor any and all opt-out requests from such URL, email, physical or post office address by adding requested email addresses to Client’s suppression or Do Not Email file.
g. False, misleading or deceptive header, transmission and subject headings are strictly prohibited. Client shall ensure that Client’s name appears in the “from” line regardless of the list or segment utilized.
h. Epsilon reserves the right to reject any subject line Epsilon feels, in its sole discretion,does not comply with the above requirements.
i. Epsilon will not provide email addresses for individuals who have requested that Epsilon (or its emails acquisition provider) no longer share their email address.
DISCLOSURE OF ISP’S RIGHTS RELATING TO EMAIL SERVICES
1. Epsilon hereby discloses to Client the ability for the Internet Service Providers (“ISPs”)to affect the sending of emails. The ISPs create their own guidelines, which change from time to time, to determine acceptable email deployment through the ISP managed servers. ISPs have the ability to monitor and suspend email deployment if they are concerned with any email content through their servers.
2. In light of the ISP’s ability to affect email operations, Epsilon hereby reserves the right to temporarily suspend the deployment of any Email Campaign to be sent through Epsilon’s channels should an ISP express any concerns or take any action due to Client’s Email Campaign that will impact Epsilon’s email delivery operations that extend beyond Email Campaigns for Client.
3. Should an ISP express concern with Client’s Email Campaign, Epsilon shall notify Client immediately upon receipt of any such concern and shall work diligently with Client and the relevant ISP to investigate and support any resolution of the issue.
4. Client agrees that it shall in good faith attempt to assist in resolving any ISP related issues in a prompt manner and make any changes that are reasonably requested by the ISPs and recommended by Epsilon in order to resume email deployment services.