Master Advertiser Terms & Conditions CPT
This Cardlytics Master Advertiser Terms and Conditions and Program Terms (“Agreement”) is entered into by and between Cardlytics, Inc. (“Cardlytics”) and the legal entity set forth below (“Client”) (individually a “party” and collectively the “parties”) and has an effective date of the last date this Agreement is signed by a party below (the “Effective Date”). In consideration of the mutual promises, agreements, and conditions stated herein, the parties agree as follows:
1. Insertion Orders. The terms of this Agreement shall govern all insertion orders, statements of work, or similar agreements entered into by Cardlytics and Client that reference this Agreement (each an “Insertion Order”). The terms of this Agreement shall be incorporated into each Insertion Order, and each Insertion Order shall constitute a part of this Agreement for all purposes. Terms used in an Insertion Order but not defined therein shall have the meanings given to such terms in this Agreement. Unless otherwise stated in an Insertion Order, Cardlytics shall determine the targeting parameters and definitions set forth in each Insertion Order in its sole discretion. In the event of a conflict or inconsistency between the terms of this Agreement and the terms of an Insertion Order, the terms of the Insertion Order shall prevail to the extent of any such conflict or inconsistency.
2. Services. Pursuant to the terms of an Insertion Order between Cardlytics and Client, Cardlytics shall provide marketing services on behalf of Client via Cardlytics’ proprietary advertising platform, channels, and program (collectively, the “Program”).
3. Content and Distribution Network. In connection with Client’s participation in the Program, Client grants Cardlytics a non-exclusive, royalty-free license to use and copy the content provided to Cardlytics by Client in connection with the Program, or that Client otherwise agrees to be used in connection with the Program (collectively, the “Content”), and to distribute the Content through Cardlytics’ network of advertising channels, including without limitation its financial institution network and other channels through which Cardlytics distributes Content (“Distribution Network”). Client agrees that Cardlytics, along with Cardlytics’ officers, directors, consultants, contractors, agents, employees, third-party service partners, and Distribution Network entities, including Cardlytics’ financial institution clients (collectively, the “Cardlytics Entities”), will not have any liability for the Content. Cardlytics may refuse any Content and further may remove any Content in its discretion at any time. Cardlytics does not guarantee that the Content will be placed in, or available through, any particular part of the Distribution Network or that the Content will appear in a particular position and client may not selectively elect to opt out of distribution of Content via any financial institution or channel.
4. Fees. Client agrees to pay the fees and charges set forth in the applicable Insertion Order. Cardlytics will invoice Client for the amounts owed, and Client shall pay such invoice within thirty (30) days from the invoice date. If Client fails to pay the invoice in accordance with the foregoing terms, (a) Client shall also pay interest on the unpaid amount at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by law, as well as all reasonable expenses (including attorneys’ fees) incurred by Cardlytics in collecting the past due amounts, and (b) Cardlytics shall have the right to suspend any of Client’s advertising campaigns and terminate any Insertion Orders. Cardlytics’ fees and charges are exclusive of any taxes or governmental charges, which are payable by Client. Unless otherwise stated in an Insertion Order, the fees will be calculated based on Cardlytics’ proprietary data at the rates stated in the Insertion Order, and will be based on purchases made by customers of Cardlytics’ financial institution clients during the applicable campaign window who activated the offer in Client’s ad prior to the purchase. Client agrees that Cardlytics’ data shall be the definitive data used to calculate the fees. Cardlytics agrees to use commercially reasonable efforts to manage the campaign to the budget set forth in the Insertion Order. Notwithstanding the foregoing, the parties acknowledge that the fees are based on actions taken by financial institution customers after being served with Client’s ad, and therefore Client agrees to pay for the fees that exceed the budget stated in the Insertion Order. In the event that Client supplies Cardlytics with a specific method of payment, such as a credit card or bank account, in connection with the Program, Client authorizes Cardlytics to bill the designated method of payment for the amounts owed by Client in connection with the Program.
5. Term and Termination. This Agreement shall remain in effect until terminated pursuant to this Section. Cardlytics or Client may terminate this Agreement or any Insertion Order via written notice upon a party’s material breach of this Agreement or the applicable Insertion Order if such breach is not cured within thirty (30) days of receipt of written notice identifying the material breach. Additionally, Cardlytics or Client may terminate this Agreement or any Insertion Order for any or no reason upon ninety (90) days’ written notice. All Sections of this Agreement or an Insertion Order that should reasonably be interpreted to survive termination, including without limitation Client’s payment obligations, shall survive termination.
6. Confidentiality. “Confidential Information” means information disclosed by Cardlytics to Client or Client to Cardlytics, either directly or indirectly, of a confidential nature, including without limitation campaign-performance reports, data, data-based insights, and other information that should reasonably be interpreted to be confidential. Confidential Information does not, however, include any information that (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party through no fault of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. The receiving party will not at any time (i) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing party, except to employees, contractors, agents, or affiliates, in each case who have a legitimate need to know such Confidential Information and are bound to confidentiality and non-use obligations no less restrictive than those contained in this Agreement; (ii) use, reproduce, or copy any Confidential Information of the disclosing party, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party by the disclosing party, or in connection with, or as set forth in this Agreement; or (iii) use the Confidential Information for improper purposes or unlawful gain, including without limitation in connection with purchasing or selling securities or sharing the information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell securities. The receiving party may disclose Confidential Information of the disclosing party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the receiving party gives the disclosing party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Notwithstanding anything to the contrary in this Agreement, either party may, without consent, disclose this Agreement or Insertion Orders (or the existence of same) to bona fide potential investors or prospective purchasers of a portion of or all of its assets or beneficial ownership interests, provided such disclosure is subject to confidentiality and non-use obligations no less restrictive than those contained in this Agreement, and/or as required by law, including any governmental or regulatory filings. In the event that Cardlytics provides Client with any transaction-level information, or offer-activation information on an individual basis, such information may only be used by Client for internal offer verification or internal evaluation of the results of the relating offer campaign, and no other purposes.
7. Warranties andDisclaimer of Warranties. Each party warrants and represents that it has the right, authority, and any required permission and consent to enter into and perform in connection with this Agreement and any Insertion Order. Except as expressly set forth in this Agreement, (a) all services provided under this Agreement are provided “as is,” without warranty, representation, condition, or guarantee of any kind, express or implied, and Client’s use thereof is at Client’s own risk; and (b) Cardlytics and Client disclaim on behalf of each of themselves any and all warranties, representations, conditions, or guarantees, including any warranties of title, merchantability, noninfringement, and fitness for a particular purpose. With respect to the Content, Client further warrants and represents that the Content (c) is, and will be updated to remain, current and accurate; (d) is either original to Client or Client has secured all necessary rights for its use in connection with the Program; (e) does not violate any applicable law or regulation or any intellectual property right of any person or entity; and (f) is not false, deceptive, misleading, unethical, defamatory, libelous or threatening, or contain pornographic, hate-related, or violent content. Client further warrants and represents that it will not (g) reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Program, any financial-institution customer information, or Cardlytics’ intellectual property, or any aspect or portion thereof, including source code, algorithms; (h) use any information obtained through hyperlinks, or any campaign reporting, to establish the personal identity of any financial-institution customer participating (or attempting to participate) in an offer or other campaign, or (i) identify, target, or analyze any individual or group as a customer of any given financial institution for any purpose, including, without limitation, to create a group or segment composed exclusively of customers of a certain financial institution.
8. Indemnification. Each party will indemnify, defend, and hold harmless the other party and its respective officers, directors, consultants, contractors, agents, attorneys, employees, and third-party service providers, and in the case of Client the Cardlytics Entities (each an “Indemnified Entity”), from all third-party claims, whether actual or alleged, to the extent arising from the other party’s breach of this Agreement or any Insertion Order (“Claims”). The indemnifying party is solely responsible for defending any Claims against each Indemnified Entity, subject to such Indemnified Entity’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from the Claims against an Indemnified Entity, provided that the indemnifying party will not agree to any settlement that imposes any obligation or liability on an Indemnified Entity without its prior written consent.
9. Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM ACCRUED BUT UNPAID CHARGES AND FEES, FROM BREACH OF CONFIDENTIALITY OBLIGATIONS, OR FROM ANY INDEMNIFICATION OBLIGATION, ANY LIABILITY OF CLIENT OR CARDLYTICS IN CONNECTION WITH THIS AGREEMENT OR ANY INSERTION ORDER, UNDER ANY CAUSE OF ACTION OR THEORY, IS LIMITED TO THE AMOUNT PAID OR PAYABLE BY CLIENT PURSUANT TO THE APPLICABLE INSERTION ORDER IN THE SIX-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN ADDITION TO ANY OTHER LIMITATIONS IN THE AGREEMENT, AND EXCEPT IN CONNECTION WITH ANY INDEMNIFICATION OBLIGATIONS, NEITHER CLIENT NOR CARDLYTICS ARE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR THE APPLICABLE INSERTION ORDER.
10. Press Release; Publicity. Neither party will issue any press release or other public statement regarding the Agreement without the prior written approval of the other party; provided, however, Cardlytics and Cardlytics’ financial institution clients may use Client’s name and logo on their marketing and promotional materials.
11. Notices. Cardlytics may give notices to Client by email, recognized overnight mail, certified mail (return receipt requested), or first class mail. Client must ensure that its contact and account information is current and correct, and promptly notify Cardlytics in writing of any changes to such information. Client will send all notices to Cardlytics via recognized overnight mail or certified mail (return receipt requested) to Cardlytics, Inc., ATTN: Legal Department, 675 Ponce de Leon Ave. NE, Suite 4100, Atlanta Georgia 30308, with an electronic copy sent to legalnotices@cardlytics.com
12. Choice of Law; Venue. The terms of this Agreement and any Insertion Orders and any dispute relating thereto will be governed by the laws of the State of Georgia, without regard to conflict or choice of law principles. In the event of any dispute arising under this Agreement or any Insertion Order, each party hereto consents to the exclusive jurisdiction in the federal and state courts located in Fulton County, Georgia. The prevailing party is entitled to recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorneys’ fees. Any claim against Cardlytics will be adjudicated on an individual basis, and will not be consolidated in any proceeding with any claim of any other person or entity. As such, client agrees that it will waive any right to participation as a plaintiff or as a class member in a class action suit against Cardlytics. Client may not be a representative of other potential claimants or a class of potential claimants in any dispute, nor may two or more individuals or entities’ disputes be consolidated or otherwise determined in one proceeding.
13. Agencies. This Section applies only if the Client is an advertising agency or other similar entity (“Agency”) representing and acting on behalf of advertisers that desire to participate in the Program (each an “Advertiser”). Agency warrants and represents that it (a) is the authorized agent of Advertiser, and (b) has the legal authority to enter into the Agreement and/or any Insertion Orders on behalf of the Advertiser such that Advertiser will be bound by the terms thereof, and (c) has the contractual authority to make all decisions and take all actions relating to the Advertiser’s account. Unless otherwise set forth stated in the Insertion Order, Cardlytics agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Advertiser to Agency. For sums not cleared to Agency, Cardlytics agrees to hold Advertiser solely liable. Cardlytics understands that Advertiser is Agency’s disclosed principal and Agency, as agent, has no obligations relating to such payments, either joint or several.
14. Affiliates. Upon Cardlytics’ written approval, any Affiliate of Client may avail itself of this Agreement by entering into its own Insertion Order with Cardlytics that states that such Insertion Order will subject to and governed by this Agreement, and in such instance Affiliate shall be bound by the terms of this Agreement as it was Client for all purposes. “Affiliate” means any entity controlling, controlled by, or under common control with Client.
15. Miscellaneous. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings with respect thereto. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. Any Insertion Order governed by this Agreement may be amended via a clear writing between the parties evidencing such amendment. Executed counterparts of this Agreement shall each be deemed originals, whether exchanged via mail or electronically, and collectively constitute one instrument. Neither party is liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar effect. Client and Cardlytics are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between Cardlytics and Client. Except as otherwise set forth in the Agreement, the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Neither Cardlytics nor Client may assign, sublicense, or transfer the Agreement or any right or duty under the Agreement, in whole or in part, without, as applicable, Client or Cardlytics’ prior written consent; provided however, either Cardlytics or Client may assign the Agreement without permission in connection with the reorganization, reincorporation, merger or sale of all or substantially all of the assets or stock of Cardlytics or Client. Cardlytics and Client’s rights and obligations under the Agreement will bind and inure to the benefit of, as applicable, Cardlytics and Client’s permitted successors and assigns. Any assignment, transfer, or attempted assignment or transfer in violation of this Section will be void and of no force or effect. Any rights not expressly granted in the Agreement are reserved by Cardlytics or Client, as applicable, and all implied licenses are disclaimed.