1. GENERAL. These terms and conditions, including applicable Specific Service Terms, (“Terms”) shall apply to the promotional, marketing, advertising and other related services, including without limitation, digital coupon/promotion distribution services (“Services”), of Coupons.com Incorporated (including its subsidiaries, the “Company”), as specified in an insertion order (“IO,” and, together with the Terms, the “Agreement”) delivered to the Company by the entity identified in such IO (“Advertiser”) or its authorized agency (“Agency,” and, together with the Advertiser, the “Client”). The Agreement shall be effective as of the “effective date” specified in such IO (“Effective Date”).
2. SERVICES. Client will submit all requirements, limits, restrictions, materials and other content in connection with the Services (“Client Content”) in accordance with Company’s then-current rules and specifications, which may require submission by way of Company’s online portal. Company will not edit or modify submitted Client Content without Client approval. Client will obtain all rights, consents, waivers, licenses, and authorizations necessary for or otherwise contemplated by the Services. Client hereby grants to Company and its third party service providers, publishers and other affiliates a nonexclusive, worldwide, fee-free and royalty-free license to use, copy, display, distribute, perform and store Client Content and Clients’ respective trade names, trademarks, logos or service marks for purposes of delivering, performing and promoting the Services and for related promotional and other business purposes. Depending on the Service, Company may deliver Client Content through the websites, mobile applications and/or software applications of Company and/or that of its publishers and affiliates (collectively, the “Company Sites”).
3. AGENCY. Advertiser shall exercise commercially reasonable efforts to cause its Agency to be bound by the Agreement. Upon request, Agency will make available to Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s written acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the Agreement. If Agency is responsible for payments, Company agrees Agency is liable solely to the extent proceeds have cleared from Advertiser to Agency for Services provided in accordance with the IO. Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis. For sums not cleared to Agency, Company will hold Advertiser solely liable. Upon the request of Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the applicable IO. If Agency fails to timely pay invoices, Company may seek payment directly from Advertiser five (5) business days after providing notice to Agency, and Advertiser shall promptly pay Company in full upon receipt of such notice.
4. FEES; PAYMENT. Client will pay the fees specified in the IO within thirty (30) days from date of invoice. Company’s records shall be determinative for purposes of calculating all amounts paid or received under the Agreement. Interest of 1.5% per month (or the maximum rate permitted by law, if lower) may be charged on any invoices not paid after thirty (30) days from issuance. Set-up fees, certain package service offerings, additional code and change fees are billed up front and are non-refundable, non-transferable and non-cancelable. Fees are billed monthly as incurred. A reasonable amount of campaign or program delivery overages (e.g., test prints) may be included in the fees unless otherwise specified in the IO. Any payment once made by Client to Company shall not be refunded or refundable to Client for any reason.
5. REPORTING. Company shall make available to Client, in electronic or other reasonable form, summary reporting regarding the Services. Client acknowledges and agrees that any summary reporting information accessed is preliminary and subject to change.
6. TERMINATION. Any party may terminate an IO upon written notice at any time, with or without cause. Upon termination by either party, Client shall not be entitled to any refund and shall remain responsible for payment of all unpaid amounts for Services performed through the effective date of termination, including without limitation offers that were activated prior to termination but redeemed after termination. In addition, if such termination is by Client, Client shall remain responsible for payment of any early cancellation fees, if applicable. Sections 4, 8, 9, 11, 12, 14 and 15 shall survive termination. Upon any termination of an IO, each party shall remove from websites and mobile applications all applicable Client Content. For clarity, the foregoing obligation does not apply to Client Content in a user’s account, e.g., pending offers that were added to a user’s account.
7. FORCE MAJEURE. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, cyber-attacks, network failures, terrorism, acts of God, or labor disputes.
8. INDEMNIFICATION. Client agrees to defend, indemnify and hold harmless Company, its affiliates and its directors, officers, employees and agents from any and all losses incurred by Company as a result of a third party claim, judgment, or proceeding relating to or arising out of (a) Client’s breach of this Agreement or (b) the content or subject matter of Client Content. In addition, if Agency executes an IO, Agency represents and warrants that it has the authority as agent to Advertiser to bind Advertiser to the Agreement. Agency agrees to defend, indemnify and hold harmless Company, its affiliates and their respective directors, officers, employees and agents from any and all losses incurred as a result of Agency’s alleged or actual breach of the preceding sentence. If any action is brought against Company in respect to any allegation for which indemnity may be sought from the Client, the Company will promptly notify the Client of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to Client at the Client’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. Client will have sole and exclusive control over the defense and settlement of any such third party claim. However, Client will not acquiesce to any judgment or enter into any settlement that adversely affects Company’s rights or interests without the prior written consent of Company.
9. LIMITATION OF LIABILITY. Except for the obligations under Section 8 and 12, respectively, in no event will: (a) either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages; or (b) Company be liable to Client for more than the total amount paid to Company by Client under the applicable IO.
10. REPRESENTATIONS. Client represents and warrants that Client Content will not (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights; (b) violate any law, statute, ordinance or regulation regarding the creation and marketing of online materials including, without limitation, those governing false and/or deceptive advertising; (c) be defamatory or trade libelous; and (d) be pornographic or obscene. In addition, if any Client Content promotes or references alcohol or any alcohol product (“Alcohol Content”), then Client further represents and warrants that: (i) Alcohol Content shall comply at all times with applicable local laws, required or recommended industry codes, guidelines, licenses and approvals (together, the “Alcohol Requirements”) in each jurisdiction where Alcohol Content is delivered; (ii) Alcohol Content contains all disclosures and terms and conditions required by Alcohol Requirements; and (iii) Alcohol Requirements on the distribution, use and redemption of Alcohol Content, including age restrictions and the like, are complied with by all third parties involved in the same.
11. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AND COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, OFFER PERFORMANCE, ACCURACY, TITLE, AND NONINFRINGEMENT. COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF ANY SERVICES, OR THAT ANY SERVICES ARE ERROR-FREE OR THAT OPERATION OF SERVICES WILL BE SECURE OR UNINTERRUPTED. COMPANY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CLIENT’S USE OF THE SERVICES, INTEGRATION WITH ANY OTHER SYSTEM, OR USE OF ANY RESULTS THEREFROM.
12. CONFIDENTIALITY. Any information provided by one party to the other party and designated as confidential or proprietary, including the pricing of the Services set forth in the IO, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall not be disclosed by the receiving party to anyone except an employee or agent who has a need to know same, and who is bound by confidentiality obligations at least as restrictive as those set forth in this Agreement. Neither party will use any Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (a) was previously known to the receiving party without restriction as to use or disclosure; (b) was or becomes generally available to the public through no fault of the receiving party; (c) is rightfully in receiving party’s possession free of any obligation of confidence, at or after, the time it was communicated to receiving party by the disclosing party; (d) was developed by employees or agents of receiving party independent of and without reference to any Confidential Information of disclosing party; or (e) was communicated by disclosing party to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure. Upon written request by either party, each party shall, return or destroy all Confidential Information of the other party in its possession.
14. PROPRIETARY RIGHTS. As between Company and Client, Advertiser owns all right, title, and interest in and to the Client Content, including all intellectual property rights therein. If Company collects Client User Data (defined below), Advertiser will exclusively own such Client User Data, provided that Client hereby grants to Company a perpetual, irrevocable, worldwide, paid-up, unlimited license to such Client User Data. As between Company and Client, Company owns all right, title, and interest in and to the Services, Company User Data (defined below) and the Company Sites (excluding Client Content incorporated therein), including but not limited to all software, technology, and intellectual property rights relating thereto. Except as expressly provided in this Agreement, neither party grants the other party any express or implied rights or licenses. As used above, “Client User Data” means user data collected by Company specifically on behalf of Client in connection with Services delivered to Client other than Company User Data; and “Company User Data” means all user data collected or otherwise obtained by Company at any time other than Client User Data.
15. MISCELLANEOUS. Company may identify Client as a client using its name or logo in its marketing materials. Except as otherwise stated herein, neither party will use the other party’s trade name, trademarks, logos or service marks in any other manner without the other party’s prior written consent. The Agreement constitutes the entire agreement of the parties with respect to the subject matter and supersedes all previous communications, representations, understandings, and agreements, either oral or written, among the parties with respect to the subject matter of the Agreement. The Agreement shall not be assigned or otherwise transferred by any party, in whole or in part, without the express prior written consent of the other party, and any such assignment or transfer shall be null and void; provided, however, that Company shall be permitted to assign or otherwise transfer the Agreement, in whole or in part, without such prior written consent upon the consummation of any merger or other business combination or transaction that results in any person, directly or indirectly, acquiring beneficial ownership of more than 50% of Company’s then outstanding shares of voting capital stock, or the sale of all or substantially all of the assets of Company. Subject to the foregoing, the Agreement shall be binding upon, and inure to the benefit of, each party hereto and the respective successors and assigns of each party. The Agreement is solely for the benefit of the Company and Client and their permitted successors and assigns and there shall be no third party beneficiaries to the Agreement. No terms in any Client purchase order may in any way modify or add to the Agreement, whether or not signed by Company, and any conflicting or additional terms and conditions of any Client purchase order, whether or not inconsistent with the Agreement shall automatically be null and void. The parties are independent contractors and the Agreement does not create an agency, partnership, joint venture, employee/employer or other similar relationship between them. The laws of the State of California, without giving effect to any choice-of-law or conflict-of-law provision or rule, shall govern the Agreement. Any legal action, suit or proceeding arising under or relating to this Agreement shall be brought in the state and federal courts in or serving Santa Clara, California and each party consents to jurisdiction and venue in such courts. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. Any notice required to be delivered hereunder shall be deemed delivered three days after deposit in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Client shall be sent to the contact as noted in the IO. All notices to Company shall be sent to: 400 Logue Avenue, Mountain View, CA 94043, Attn: Legal Dept. Facsimile signatures shall hold the same force and effect as an original signature for purposes of binding parties to the Agreement. The Terms may not be amended or otherwise modified unless set forth in a written instrument signed by both Company and Client. If any provisions of the Terms conflict with any provisions in the IO, the provisions in the Terms shall control.
SERVICE SPECIFIC TERMS
The following additional provisions shall apply to the specified Services:
A. DFSI SERVICES
1. Activations. Activations are billed monthly as incurred. Changes to Activation quantities within any IO may be approved via electronic mail.
2. Advance. Notwithstanding the foregoing, upon Advertiser written request, the Advance Balance (defined below) may be applied to offset additional Activation amounts set forth in an IO delivered prior to the Cutoff Date (defined below), provided that following the Cutoff Date and thereafter the Advance Balance shall lapse, cease and terminate in full and shall not be applied by Advertiser in any manner or for any purpose.
3. Definitions. As used in this Section A: (a) “Activation” means, with respect to Client offer or promotion in connection with the Services, the occurrence of specified consumer activity or action with respect to such offer or promotion, including, without limitation, the submission of a physical print request for such offer, the association of such offer to a user account or the display of such offer via electronic device; (b) “Advance” means a dollar amount with respect to Activations invoiced in advance of and prior to date of incurrence; (c) “Advance Balance” means the balance of the Advance that remains outstanding and unused as of the Cutoff Date of the initial applicable IO; and (d) “Cutoff Date” means such date on or prior to 180 days following the initial IO end date
B. CARD LINKED OFFER SERVICES
1. Service Fees; IO. Except for the one-time Set Up Fee and Marketing Opt-In Service Fee (if applicable), the fees set forth in the IO apply on a per Qualifying Transaction basis, where “Qualifying Transaction” means a transaction by a user of Company’s card linked offer program that completes the offer requirements as recorded by Company’s tracking technology. Changes to offer budgets specified in the IO and campaign end dates within any IO may be approved via electronic mail. As used in the IO, “Discount Basket” or “DB” means the total amount of a Qualifying Transaction less the amount of the Reward Reimbursement.
3. Authorization. Client acknowledges that Tracking Service Providers (defined below) will assist Company in providing the Services and authorizes Company’s Tracking Service Providers to monitor transactions by users of Company’s card linked offer program and provide Company with transaction data about actual and potential Qualifying Transactions. Client will execute such documents as may be required by Tracking Service Providers to confirm such authorization. Client agrees to provide to Company, and authorizes Company to provide to its Tracking Service Providers, information necessary to onboard Advertiser and its offers into Company’s card linked offer program. If Company provides any transaction data to Client, including without limitation aggregated, anonymous transaction data, Client shall use such data solely for the purposes of understanding offer performance and substantiating User Rewards (defined below) and shall retain such data only for as long as it legitimately needs for such purposes. As used herein, (a) “Tracking Service Providers” means payment card networks and payment processing companies participating in Company’s card linked offer program; (b) “User Reward” means the statement credit, virtual currency, or other reward due to users for each Qualifying Transaction. Company may determine the type(s) of User Rewards in its sole discretion.
4. VISA Marketing. Client will notify Company in writing if Client agrees to include a VISA branded icon within the Advertiser offer which would enable a user to elect to receive marketing and other promotional communications from VISA.
5. Payment Obligation. Client shall be obligated to pay all Service Fees, including Reward Reimbursements, to Company once a Qualifying Transaction has occurred, even in the cases of returns, refunds or credits given to users, or chargebacks issued by Tracking Service Providers. Client bears all risk associated with collections, defaults, chargebacks, refunds or credits, returns, fraudulent transactions and the like with respect to Qualifying Transactions. In addition to the sections provided in Section 6 of the Agreement, this section shall survive termination.
6. Taxes. Amounts shall be paid to Company free and clear of all taxes, withholdings and other governmental charges and assessments (“Taxes”) and such amounts shall be grossed up to compensate for any withholdings. Advertiser will pay all such Taxes and all applicable shipping or fulfillment charges in connection with a Qualifying Transaction. Advertiser is solely responsible for all reporting obligations to users relating to Taxes.