Cardlytics Advertising Services Terms and Conditions
- Application of these terms
These Cardlytics Advertising Services Terms and Conditions (the “Agreement”) are entered into by and between Cardlytics UK Limited (“Cardlytics”) and the legal entity set forth in the applicable Campaign Series Booking Form (“Client”). This Agreement shall govern all Campaign Series Booking Forms entered into by Cardlytics and a Client that reference this Agreement. This Agreement shall be incorporated into each Campaign Series Booking Form and each campaign Series Booking Form shall constitute a part of this Agreement for all purpose. This Agreement, together with any Campaign Series Booking Form (a) apply, unless stated otherwise, to all contracts between Cardlytics and the Client for the supply of Services; and (b) are subject to any conditions specified in the Campaign Series Booking Form which will take precedence over this Agreement in the event of a conflict. Words used in a Campaign Series Booking Form but not defined therein shall have the meanings given to such terms in this Agreement.
In these terms and conditions:
“Advert” means an advertisement, cashback offer, or other marketing communication distributed through digital channels (including online and mobile banking) to a Consumer in accordance with the Campaign Series Booking Form;
“Activation” means a Consumer clicking on a cashback offer, and “Activated” shall be construed accordingly;
“Applicable Transaction” means a transaction by a Consumer at the Client made after the Advert was distributed to that Consumer’s online and mobile banking app(s) and made using a payment card linked to the Consumer’s Financial Partner account. For the avoidance of doubt, a transaction by a Consumer will be considered an Applicable Transaction if the Advert was distributed to the Consumer’s online and mobile banking app(s) prior to the Consumer’s purchase even if the Consumer did not actually view or activate the Advert prior to their purchase.
“Campaign Series Booking Form” means any Campaign Series Booking Form, statement of work or other similar agreements entered into by Cardlytics and Client;
“Consumer” means a Financial Partner’s customer;
“Contribution” means any content, information, or requests provided by Client in connection with Cardlytics producing an Advert or any other information that Client otherwise agrees to be used in connection with an Advert;
“Fees” means the amounts to be paid by Client to Cardlytics for the Services as specified herein and in a Campaign Series Booking Form;
“Financial Partner” means Cardlytics’ financial institution and other publishing partners who participate in Cardlytics marketing network;
"Losses" means any losses, liabilities, damages, costs, awards, fines, penalties, sanctions, amounts paid in settlement and expenses (including reasonable legal fees and disbursements for external counsel, and reasonable costs of investigation, litigation and settlement); and
“Services” means the provision of Adverts to be placed on Financial Partner’s digital channels (including online and mobile banking) based on the banking behaviour of Consumers as further set out in any Campaign Series Booking Form.
- Services
2.1 Cardlytics will provide the Services with reasonable skill and care.
2.2 Unless otherwise stated in a Campaign Series Booking Form, Cardlytics shall determine the targeting parameters and definitions set forth in each Campaign Series Booking Form in its sole discretion.
2.3 Client agrees and acknowledges that a Financial Partner may suspend or terminate any Advert campaign at any time in which case Client shall, in respect of Adverts issued or to be issued to such Financial Partner’s customers, only be required to pay Cardlytics the agreed Fees for Adverts up until the date on which any Advert campaign is suspended or terminated. Cardlytics and Financial Partners shall not otherwise have any liability to Client for such suspension or termination.
2.4 For each Advert campaign, Cardlytics shall make available reporting (at least on a monthly basis), informing Client: (a) the number of Consumers who have been Presented with the Advert; (b) the number of Applicable Transactions; and (c) the total aggregate sales amount of all Applicable Transactions.
- Editorial Processes For Adverts
3.1 Client shall provide Cardlytics with any Contribution, including a logo, in sufficient time for Cardlytics to undertake the Services. Client shall further provide Cardlytics with any information reasonably requested by Cardlytics. Cardlytics shall have no liability for any delays in the provision of Services which results from any delay on the part of Client.
3.2 Client warrants that Cardlytics’ use of the Contribution will not infringe the rights of any third party. Client warrants that any Contribution supplied for inclusion in a Advert or approved by Client shall be true and accurate, shall comply with all laws, regulations, standards determined by any governmental or regulatory authority and generally applicable industry or self-regulatory standards (including without limitation the British Code of Advertising, Sales Promotion and Direct Marketing and codes of practice of the Direct Marketing Association), and shall not infringe any third party rights (including intellectual property rights). Client agrees that Cardlytics and the Financial Partners will not have any liability for the Contribution.
3.3 Cardlytics shall have no obligation to display any Advert until such time that Cardlytics approves such content and Cardlytics may refuse any Advert and may remove any Advert in its discretion at any time. Cardlytics does not guarantee that the Advert will be placed in, or available through, any particular part of Cardlytics’ network or that the Content will appear in a particular position.
- Charges and Payment
4.1 The fees payable by the Client to Cardlytics in respect of a month shall be:
a) an amount equal to the total value of cashback discounts specified in any Adverts which have resulted in an Applicable Transaction in such month (the “Consumer Discount”); plus
b) in respect of the Services, an amount equal to an agreed percentage of the total transaction value of all Applicable Transactions in such month (the “Transaction Fee”).
Consumer Discounts and Transactions Fees are agreed for each campaign series and recorded in the Campaign Series Booking Form.
In respect of the Consumer Discount Cardlytics and the Financial Partner are merely acting as the Client’s agents in facilitating the payment of monies owed by the Client to the Consumer and neither Cardlytics nor the Financial Partner are entitled to that sum.
4.2 Cardlytics shall:
a) in respect of the Consumer Discount for financial institution partners, make a non-vatable request for payment; and
b) in respect of the Consumer Discount for other publishing partners and the Transaction Fee, send a vatable invoice to the Client on a monthly basis and the Client shall pay Cardlytics within 30 days from the date of invoice/ request for payment (as applicable).
4.3 Unless otherwise specified in this Agreement, all amounts set out in this Agreement are exclusive of any VAT and all other taxes and statutory charges which will be set out in an invoice and charged to the Client in addition to any fees payable by the Client under this Agreement. The Client shall pay such taxes and charges within 30 days from the date of invoice.
4.4 Client acknowledges that all fees and reporting will be calculated based on information provided via Cardlytics’ Financial Partners and that Cardlytics data shall be the definitive data used to calculate the fees and reporting. Client also specifically agrees and acknowledges that fees and cash back will be calculated and determined by Cardlytics utilizing merchant identification numbers (“MIDs”) provided by the Client or identified by Cardlytics.
4.5 If Client fails to pay invoices 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 Campaign Series Booking Form.
- Operational and Other Matters
5.1 Cardlytics and Financial Partners shall have no liability for any goods or services sold or made available to Consumers by a Client, such liability being assumed by Client.
5.2 Client shall indemnify and keep indemnified Cardlytics against any and all Losses suffered by Cardlytics arising in connection with, or resulting from, Client’s breach of this Agreement or any Campaign Series Booking Form.
- IP, Data, Systems and Reports
6.1 Client and Cardlytics shall comply with all relevant provisions of the Data Protection Act 2018 (as amended or replaced) and all relevant subsidiary legislation and all applicable codes of practice.
6.2 Client grants to Cardlytics for the duration of this Agreement a royalty free, non-exclusive licence to use the Contribution for the purposes of (i) the Services and (ii) any promotional materials issued by Cardlytics and/or the Financial Partners related to the Services.
- Term and Termination
7.1 This Agreement shall, subject to clause 7.2, continue in force until terminated by either party giving to the other party notice in writing of termination to expire the later of three months from the receipt of the notice of termination or the completion of any Services detailed in any Campaign Series Booking Form agreed prior to the notice of termination.
7.2 Either party may terminate this Agreement by 30 days written notice if: (a) the other commits a material breach of this Agreement and such breach (if capable of remedy) is not remedied within 30 days of written notice to do so; or (b) the other takes, or there are taken in respect of it, any step, action, application or proceeding in relation to the whole or any part of its undertaking for a voluntary arrangement or composition or reconstruction of its debts or its winding-up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if any equivalent step or proceeding is taken in any relevant jurisdiction.
7.3 Rights and obligations accrued at termination or expiry of this Agreement shall not be affected by such termination or expiry. Any provisions of this Agreement intended to apply after termination or expiry shall survive termination or expiry.
- Liability and Entire Agreement
8.1 Neither party shall be under any liability (whether in tort, contract or otherwise) to the other for damages for: (a) any failure to achieve incremental revenue or business or failure to increase market share as a result of the Services and/or (b), except for in connection with any indemnification obligations, any indirect, incidental, special, consequential, contingent, or exemplary damages, including damages for loss of profits, goodwill, use or data, arising out of, or in connection, with this Agreement or the applicable Campaign Series Booking Form.
8.2 Nothing in this Agreement shall exclude or restrict a party's rights or remedies in respect of any indemnities set out in this agreement, any fraud, any claim for death or personal injury caused by the other party's negligence or any other liability which cannot be limited or excluded at law.
8.3 Except as specified in Clause 8.2 and for liability arising from accrued but unpaid charges and fees or from any indemnification obligations, any liability of Client or Cardlytics in connection with this Agreement or any Campaign Series Booking From, under any cause of action or theory, is limited to the amount paid or payable by Client pursuant to the applicable Campaign Series Booking Form(s) in the six-month period prior to the event giving rise to the claim.
8.4 This is the entire agreement between the parties in relation to its subject matter and supersedes any previous agreement between the parties in relation to such matters. All implied warranties, terms and conditions not expressly set out in this Agreement are excluded to the greatest extent permissible by law.
8.5 No variation of this Agreement shall be effective unless in writing signed by each party.
- Insights Portal
9.1 In the event that Cardlytics issues Client with user credentials to Cardlytics’ Insights Portal (“Insights Portal”), the provisions of this Section shall apply.
9.2 User credentials may not be shared and shall be granted to Client personnel only. Client will ensure that user credentials are kept confidential and will promptly notify Cardlytics of any unauthorized disclosure of such user credentials.
9.3 Client acknowledges that certain features of the Insights Portal, including the types of reports and dashboards available thereon, are subject to change based on obligations imposed on Cardlytics by its Financial Partners.
9.4 The Insights Portal and the data contained therein is intended for Client's internal use and as such, Client may not disclose such data or any derivatives thereof to any consultant, subcontractor or third party without Cardlytics' written consent.
- Agencies
10.1 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 receive the Services (each an “Advertiser”).
10.2 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 Campaign Series Booking Forms 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.
10.3 Unless otherwise set forth stated in a Campaign Series Booking Form, Cardlytics agrees to hold Agency liable for fees solely to the extent proceeds have cleared from Advertiser to Agency provided that Agency will be obligated to utilize its best endeavours at its own expense to collect any unpaid fees due to Cardlytics from the Advertisers.
- Confidentiality
11.1 “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, this Agreement and any 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.
11.2 Each 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 other party, except to its employees, and, in the case of Cardlytics, to its Affiliates, sub-contractors and the Financial Partners, 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 other party, except as necessary in connection with the purpose for which such Confidential Information was disclosed, 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.
11.3 In addition, a party may disclose the other party’s Confidential Information as required by law provided that such party gives the disclosing party prompt written notice of such requirement (unless expressly prohibited in writing) prior to such disclosure and takes reasonable steps to protect the Confidential Information from public disclosure and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.
- Miscellaneous
12.1 Cardlytics shall not be liable for any failure or delay in performing its obligations resulting from 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. In such event Cardlytics party shall give notice in writing to Client as soon as reasonably practicable and shall use all reasonable endeavours to mitigate the effect and to perform its obligations in a similar way wherever possible.
12.2 Any reference to a party includes its successors and assigns. Cardlytics may subcontract its rights or obligations under this Agreement without the need for Client’s prior written consent. Neither party may otherwise assign, subcontract or transfer its rights or obligations under this Agreement without the prior written consent of the other, save that either party may assign or transfer this Agreement or any of its rights and / or obligations under it to any Affiliate or 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 this Agreement will bind and inure to the benefit of, as applicable, Cardlytics and Client’s permitted successors and assigns.
12.3 Upon Cardlytics’ written approval, any Affiliate of Client may avail itself of this Agreement by entering into its own Campaign Series Booking Form with Cardlytics that states that such Campaign Series Booking Form will be subject to and governed by this Agreement, and in such instance, Affiliate shall be bound by the terms of this Agreement as if it was Client for all purposes. “Affiliate” means any entity controlling, controlled by, or under common control with Client.
12.4 This Agreement does not create a partnership or (save as specified) agency between the parties. Save as expressly provided, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
12.5 If any provision of this Agreement is held invalid or unenforceable, that provision will be enforced to the maximum extent permitted by law and the remaining provisions will remain in full force.
12.6 In no event shall a party’s failure to enforce a provision of this Agreement be deemed to be a waiver of that provision or of any other provision of this Agreement.
12.7 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 Campaign Series Booking Form.
12.8 Any notice shall be in writing and shall be served if delivered personally or sent by pre-paid post to the address of the respective party set out above or other contact address provided for this purpose in accordance with this clause, or if sent by email.
12.9 This Agreement shall be governed by English law and the English courts shall have the exclusive jurisdiction to settle any disputes.