PROMOTIONS & MEDIA TERMS (U.S.)
By signing an order, or engaging Quotient Technology Inc. ("Quotient") or its Distribution Programs as set forth below, you agree, on behalf of you and your organization (the "Advertiser"), to be bound by, and to comply with, these Promotions and Media Terms ("Terms"). Each order will be deemed to incorporate these Terms as they are published by Quotient on the effective date of such order. As used in these Terms, "Advertiser" means, collectively, Advertiser and, if applicable, its authorized agency ("Agency").
1. Campaigns; Insertion Orders; Agency.
(a) General. Quotient will include Advertiser's offer and media content ("Content") in its distribution programs in the United States which may include acquiring media inventory on Advertiser's behalf ("Distribution Programs"), using its proprietary platform and technology ("Platform") as set forth in insertion orders that the parties may execute from time to time (each, an "Insertion Order", or "IO" or "Purchase Order") for Advertiser's campaigns (each, a "Campaign"). Insertion Orders, including the terms referenced therein that are applicable to Advertiser's specific Campaigns, and these Terms form an agreement between the parties and will be hereinafter referred to as the "Agreement". This Agreement governs the Content displayed to consumers located in the United States only. Certain types of Campaigns are subject to Service-Specific Terms (quotient.com/serviceterms/); such terms are incorporated herein by reference.
(b) Agency. Advertiser may appoint an agency to act on its behalf with respect to the Campaigns after an agency appointment notice has been executed by Advertiser, Agency, and Quotient.
(c) Exclusivity. During the Term, Quotient will be Advertiser's exclusive provider of the programs and services similar to the Distribution Programs and services set forth in this Agreement.
(d) SOW. Advertiser may request Quotient to provide certain professional services that are ancillary to the Campaigns, such as content creation, integration, or customization ("Professional Services"). In such event, the parties will enter into a statement of work ("Statement of Work", or "SOW") which sets forth the scope and description of the Professional Services, deliverables, parties' responsibilities, completion dates, fees and payment terms, and any other relevant information.
2. Account.
(a) Account. Quotient will provide Advertiser with an account where Advertiser may submit Content for its Campaigns and track Campaigns' progress and results. Advertiser is responsible for all activities that occur under Advertiser's account. Advertiser will use commercially reasonable efforts to prevent unauthorized access to, or use of, Advertiser's accounts and notify Quotient promptly of any such unauthorized use.
(b) Restrictions. Advertiser will not use its account and the Distribution Program to: (i) send spam or any other form of duplicative and unsolicited messages other than marketing and promotional messages to Advertiser's clients and prospective clients as contemplated by the Campaign; (ii) harvest, collect, gather, or assemble information or data regarding other users without their consent; (iii) knowingly transmit through, or post on, the account unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material, or material harmful to minors.
(c) License. If and when necessary for Advertiser to access the Quotient Platform for certain Quotient's offering on an IO or Purchase Order, Quotient grants to Advertiser a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use certain features of the Quotient Platform as set forth in the Purchase Order or IO, solely for Advertiser's internal business purpose. Advertiser will not distribute, disclose, modify, sublicense, disassemble, reverse engineer, or offer to third party (on a service bureau basis or otherwise), the Quotient Platform or any materials offered thereon. Advertiser agrees to use all reasonable means to prevent any unauthorized access to, or use of, the Quotient Platform and, if Advertiser becomes aware of any unauthorized access or use, Advertiser shall promptly Quotient. If Advertiser suggests to Quotient or requests any new features, functionality, or performance for the Quotient Platform that Quotient subsequently incorporates into the Quotient Platform, all rights, title and interest now existing or hereafter in existence therein shall automatically be the sole and exclusive property of Quotient and Advertiser hereby assign to Quotient any rights it has therein.
3. Advertiser Materials and Data.
(a) Content Provision and Delivery. In connection with any Campaign, Advertiser will submit the Content and any requirements, limits, restrictions, and related materials ("Advertiser Materials") to Quotient using its account; all such submission must be in accordance with Quotient's then-current specifications. Advertiser hereby grants to Quotient a nonexclusive, worldwide, royalty-free license to use, copy, modify (only to the extent necessary or as expressly permitted by Advertiser), distribute, publicly perform, and display the Advertiser Materials, which may include Advertiser's trade names, trademarks, logos, or service marks, for purposes of delivering, performing, and measuring the Campaigns and for related promotional activities and other business purposes. Depending on the Campaign, Quotient may deliver Advertiser Content through the websites, mobile applications, and/or software applications of Quotient and/or those of its affiliated publishers, retailers, and network (collectively, the "Quotient Sites").
(b) Advertiser Data. If a Campaign requires Advertiser to provide certain data regarding consumers (e.g., email address for an email promotional Campaign) ("Advertiser Data"), Advertiser will provide such Advertiser Data to Quotient in accordance with Quotient's then-current specifications. Advertiser hereby grants to Quotient a nonexclusive, worldwide, royalty-free license to use Advertiser Data for the sole purpose of performing its obligations under this Agreement.
(c) Agents and Contractors. The licenses granted in this Section 3 extend to Quotient's service providers, affiliated publishers, retailers, and network, provided that Quotient remains liable for such third party's breach of this Agreement.
(d) No Implied License. Except as expressly provided in this Agreement, neither party grants the other party any express or implied rights or licenses.
4. Pricing and Payment.
(a) Prices. Prices will be as set forth in Quotient's then-current standard rate card, unless otherwise mutually agreed to by the parties as set forth in an executed Pricing Supplement or a similar document. Quotient's prices are exclusive of taxes (Sales Tax, Goods and Services Tax, Value Added Tax, Gross Consumption Tax, etc.), withholdings, and other governmental charges and assessments ("Taxes"). Advertiser will be responsible for paying all such Taxes.
(b) Payment. Advertiser will pay the fees specified in the IO within thirty (30) days from date of invoice. Quotient's records will 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, creative fees, certain package service offerings, additional code and change fees are billed up front at the time the IO is executed, modified, or supplemented, as applicable, and are non-refundable, non-transferable, and non-cancelable; all other fees are billed monthly as incurred. The measurement used for invoicing fees under an IO will be based on Quotient servers and systems.
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 Advertiser to Quotient will not be refundable to Advertiser except for a material breach by Quotient to which the payment relates.
(c) Agency Payment. If Agency is responsible for payments, Quotient agrees Agency is liable solely to the extent proceeds have cleared from Advertiser to Agency for the Campaign 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, Quotient will hold Advertiser solely liable. Upon the request of Quotient, 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, Quotient may seek payment directly from Advertiser five (5) business days after providing notice to Agency, and Advertiser will promptly pay Quotient in full upon receipt of such notice.
(d) Billing Reports. Quotient will make available to Advertiser, in electronic or other reasonable form, a billing report for the Campaign. Advertiser acknowledges and agrees that any billing report accessed via Advertiser's account may be preliminary and subject to change.
5. Term; Termination.
(a) Term. This Agreement will remain effective until no IO or Pricing Supplement is in effect.
(b) Termination. Either party may terminate the Agreement promptly upon any material breach of the Agreement by the other party if the breaching party fails to remedy such breach within thirty (30) days after written notice thereof from the non-breaching party. Any party may terminate an IO upon written notice at any time, with or without cause. Upon termination by Advertiser of an IO without cause, Advertiser will not be entitled to any refund and will remain responsible for payment of all unpaid amounts for the Campaign performed through the effective date of termination, including without limitation offers that were activated prior to termination but redeemed after termination, as well as payment of any early cancellation fees, if applicable.
(c) Effect of Termination. Upon written request by either party, each party will promptly return or destroy all Confidential Information (as defined below) of the other party in its possession. Upon any termination of an IO, Quotient will remove all applicable Advertiser Content from websites and mobile applications. For clarity, the foregoing obligation does not apply to Advertiser Content in a user's account, e.g., pending offers that were added to a user's account.
(d) Survival. Sections 5(c), 6, 8, 9, 10, 11, and 12 will survive termination or expiration of the Agreement.
6. Proprietary Rights.
(a) Ownership. As between Quotient and Advertiser, Advertiser owns all right, title, and interest in and to the Advertiser Content and Advertiser Data, including all proprietary and intellectual property rights therein. As between Quotient and Advertiser, Quotient owns all right, title, and interest in and to the Quotient Sites and the Quotient Platform, any materials provided by Quotient, and any data collected on the Quotient Sites or via the Quotient Platform ("Quotient Data"), and all derivative works of the foregoing, and all intellectual property therein (collectively, "Quotient IP").
(b) Overlapping Data Rights. The Parties acknowledge that the same or similar information may be included in Advertiser Data and Quotient Data; to the extent that the same or similar information is both Advertiser Data and Quotient Data, (i) Advertiser shall retain its ownership and rights in Advertiser Data; and (ii) Quotient shall retain its ownership and rights in Quotient Data. The parties acknowledge and agree that certain information collected independently outside the scope of this Agreement by either party may be the same or similar to the information included in the Advertiser Data or Quotient Data, and that this Agreement does not in any way change the party's rights with respect to such data.
7. Warranties and Representations.
(a) Mutual Warranties. Each party represents and warrants, during the Term, that: (i) such party has the necessary right, power, and authority to enter into this Agreement and to perform its obligations hereunder (including but not limited to the right to grant the licenses hereunder); (ii) such party complies, and will continue to comply, with all laws, statutes, ordinances, and regulations applicable to its performance hereunder; and (iii) the execution, performance, and delivery of the Agreement do not breach, or conflict with, any other agreement, obligation, commitment, or responsibility of such party, including but not limited to such party's privacy policy. Each party's sole and exclusive remedies for the other party's breach of its warranties and representations in this Section 7(a) will be as set forth in Section 8.
(b) By Quotient. Quotient represents and warrants that the Quotient IP will not infringe on any third party's copyright, patent, trademark, trade secret, or other proprietary rights, and that Quotient will perform its obligations hereunder in a professional manner, in compliance with laws and industry standard.
(c) By Advertiser.
(i) Advertiser represents and warrants that Advertiser 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 Advertiser Content promotes or references any products or content that are regulated by laws (e.g. alcohol, tobacco, dairy, sweepstakes or contests)("Regulated Content"), then Advertiser further represents and warrants that: (i) Regulated Content will comply at all times with applicable local and national laws, required or recommended industry codes, guidelines, licenses, and approvals (together, the "Regulatory Requirements") in each jurisdiction where Regulated Content is delivered; (ii) Regulated Content contains all disclosures and terms and conditions required by Regulatory Requirements; and (iii) Regulatory Requirements on the distribution, use, and redemption of Regulated Content, including age restrictions, eligibility requirements, and the like, are complied with by all third parties involved in the same.
(ii) In the event Advertiser Data includes Personal Information (as defined in the 2018 California Consumer Privacy Act) and other personal or personally identifiable data ("PI"), Advertiser represents and warrants that: (a) it complies and shall continue to comply with all applicable laws, rules, and regulations, including in connection with privacy and data protection; and (b) to the extent applicable, it has the full right, authority, permissions, approvals and consents, including from end-users (as applicable), and has made all sufficient disclosures required under applicable law, to allow Quotient (including its service providers) to access, store, collect, analyze, use and process, on Advertiser's behalf for the purpose of the Campaigns, in accordance with the terms of this Agreement, and all PI has been and will be legally acquired, and the PI, and its accessing, storage, collection, analysis, use and processing by Advertiser and/or on its behalf by Quotient for the purpose of the Campaigns, does not and will not infringe any third party's rights.
(d) Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AND QUOTIENT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
(a) By Advertiser. Advertiser agrees to defend, indemnify, and hold harmless Quotient, its affiliates, and its directors, officers, employees, and agents from any and all claims, judgments, or proceedings brought by a third party against Quotient relating to, or arising out of, (a) Advertiser's breach of its warranties and representations set forth in Section 7 of this Agreement or (b) the content or subject matter of Advertiser Content.
(b) By Quotient. Quotient agrees to defend, indemnify, and hold harmless Advertiser, its affiliates, and its directors, officers, employees, and agents from any and all claims, judgments, or proceedings brought against Advertiser alleging that the Quotient IP infringes on a copyright, patent, trademark, trade secret, or other proprietary right. The foregoing does not apply to any third-party claim, judgment, or proceeding arising out of, or relating to, (a) use of any Quotient IP in combination with any hardware, system, software, network, or other materials or service not provided by Quotient; (b) modification of any Quotient IP other than (i) by, or on behalf of, Quotient, or (ii) with Quotient's prior written approval; (c) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Advertiser by, or on behalf of, Quotient; (d) the content or subject matter of Advertiser Content; or (e) Advertiser's breach of any express representation or warranty made by Advertiser in Section 7 of this Agreement.
(c) Procedure. If any action is brought against either party (the "Indemnified Party") with respect to any allegation for which indemnity may be sought from the other party (the "Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to Indemnifying Party at the Indemnifying Party'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. The Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third-party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.
Except for the obligations under Section 10 (Confidentiality), 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) Quotient be liable to Advertiser for more than the total amount paid to Quotient by Advertiser under the applicable IO.
Any information provided by one party to the other party and designated as confidential or proprietary, or if such information would, under the circumstances, appear to a reasonable person to be confidential or proprietary, including the pricing set forth in the IO, will be deemed "Confidential Information" of the disclosing party. Confidential Information will not be disclosed by the receiving party except to the employees or agents who have a need to know, and who are 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" will 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. The recipient of Confidential Information will at all times treat the Confidential Information with at least the greater of: (1) the level of care that it customarily treats its own confidential information; or (2) the level of care that is the standard in the industry; or (3) the level of care legally required to maintain secrecy and all proprietary rights in said information. Notwithstanding the foregoing, either party may disclose Confidential Information in response to, or resulting from, a valid order by a court, arbitral tribunal, 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 for any orders necessary to protect said information from public disclosure. Upon written request by either party, each party will return or destroy all Confidential Information of the other party in its possession.
11. Compliance; Privacy.
Quotient, Agency, and Advertiser will post on their respective websites and/or mobile applications, as appropriate, their privacy policies and adhere to their privacy policies, which will abide by the applicable laws. Failure by Quotient or Advertiser to post a privacy policy or non-adherence to its own privacy policy is grounds for immediate termination of the IO or this Agreement by the other party. Agency, Advertiser, and Quotient each covenants, represents, and warrants that it complies, and will comply at all times, with all applicable federal, state, and local law, rules, ordinances, regulations, and codes applicable to its performance under this Agreement.
(a) Quotient may identify Advertiser as a customer 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.
(b) The Agreement constitutes the entire agreement of the parties with respect to the subject matter and supersedes all previous or contemporaneous communications, representations, understandings, and agreements, either oral or written, among the parties with respect to the subject matter of the Agreement. In the event Advertiser requests for Quotient to respond to certain vendor questionnaire, vendor set up documents or the like, Advertiser acknowledges and agrees that Quotient's responses are provided as a courtesy and do not constitute an independent representation or an amendment to, or change the terms of, this Agreement.
(c) The Agreement will 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 will be null and void. Notwithstanding the foregoing, either party may assign this Agreement to a purchaser of all or substantially all of its assets or stock without the other party's prior written consent, provided that, upon such assignment, any minimum commitment owed by Advertiser will be due and payable by the assignee, and any terms regarding pricing and payment will be replaced with Quotient's standard rate card pricing and payment terms. Subject to the foregoing, the Agreement will 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 Quotient and Advertiser and their permitted successors and assigns, and there will be no third-party beneficiaries to the Agreement.
(d) 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 (a "Force Majeure Event"), 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. The party suffering a Force Majeure Event will give notice to the other party within five (5) business days of the Force Majeure Event.
(e) The parties are independent contractors, and the Agreement does not create an agency, partnership, joint venture, employee/employer, or other similar relationship between them.
(f) The laws of the State of California, without giving effect to any conflict-of-law provision or rule, will govern the Agreement. Any legal action, suit, or proceeding arising under, or relating to, this Agreement will be brought in the state and federal courts located in, or serving, Santa Clara County, California, and each party consents to jurisdiction and venue in such courts.
(g) If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. Any notice required to be delivered hereunder will be deemed delivered three (3) days after deposit in U.S. mail, return receipt requested, one (1) business day if sent by overnight courier service, and immediately if sent electronically. All notices to Quotient will be sent to: 400 Logue Avenue, Mountain View, CA 94043, Attn: Legal Dept.
(h) The Agreement may not be amended, modified, or supplemented unless set forth in a written instrument signed by both Quotient and Advertiser. No terms in any Advertiser purchase order may in any way modify or add to the Agreement, whether or not signed by Quotient, and any conflicting or additional terms and conditions of any Advertiser purchase order, whether or not inconsistent with the Agreement, will automatically be null and void.
(i) If any provisions of the Terms conflict with any provisions in the IO, the provisions in the IO will control.