Last Updated: February 17, 2016
This Remarketable Client Agreement (together with any Order Forms hereunder, the “Agreement”) is a binding agreement between ALC, LLC (“ALC”) and the person or entity (“Client” or “you”) ordering ALC’s TriggerMail direct and email retargeting and campaign fulfillment services (the “TriggerMail Services”) and/or targetable list enhancement services (the “WishList Services,” and, together with the TriggerMail Services, the “Remarketable Services”) provided through its proprietary Remarketable retargeting platform (the “Platform”).
This Agreement governs the provision and use of the Remarketable Services. By accepting this Agreement (either by clicking a box indicating acceptance or by agreeing to an Order Form (as defined in Section 1 below) that references this Agreement, Client agrees to the terms of this Agreement. If the person accepting this Agreement is entering into it on behalf of a company or other legal entity, such person represents and warrants that he or she has the authority to bind such entity to this Agreement, in which case the term “Client” shall refer to such entity.
1. Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:
“Client Property” means a Client-operated website or other Internet property.
“Consumer” means a visitor to a Client Property.
“Creative” means marketing collateral for a campaign.
“Order Form” means any written or electronic document mutually agreed to by Client and ALC (including by exchange of emails or through the Portal (as defined in Section 4(a) below)) for the provision of Remarketable Services to Client. Order Forms shall be deemed incorporated herein by reference. Each Order Form may specify, as applicable, start and end dates for a campaign, pricing, mail volumes, data fields to be included in targeting files, formatting and other requirements for Creative, reporting requirements, deployment of advertising tags or codes on the Client Properties, and/or other campaign terms. In the event of any conflict between the terms of an Order Form and those in this Agreement, the former shall control with respect to the relevant campaign specified in the Order Form.
2. TriggerMail Campaigns. Other than the definitions (which shall apply to all Remarketable Services), this Section 2 shall apply only to the TriggerMail Services:
(a) As provided in the applicable Order Form, ALC will collect (or receive from Client’s third-party vendor) depersonalized Consumer data consisting of online behavioral data associated with unique anonymous identifiers such as (but not limited to) browser cookies, unique device identifiers, or other similar or equivalent technologies (such identifiers, “ALC ID’s,” and, collectively with the online behavioral data, the “Depersonalized Data”). Through the Platform, ALC shall then append demographic data and generate instructions for direct mail or email offers using Creative approved by Client. Such mailings will be distributed to the Consumers by ALC’s print and email service providers (each, an “ALC Provider”) using third party sourced data files.
(b) Client hereby grants ALC a worldwide, non-transferable, non-sub licensable (except to service providers and permitted assignees), royalty-free limited license to (i) use the Depersonalized Data to conduct retargeting campaigns, and (ii) use, reproduce, distribute and display the Creative and any associated logos, names and/or marks (collectively, “Marks”) in TriggerMail mailings, in each case in accordance with the Agreement and the applicable Order Form. Client is solely responsible for the content of the Creative, and ALC shall have no liability whatsoever relating to Creative or any products or services featured therein.
(c) The Depersonalized Data, together with any data derived from Consumer interactions with mailings deployed pursuant to this Agreement, constitute Confidential Information (as defined in Section 9(a) below) and trade secrets of Client. However, notwithstanding anything herein to the contrary, ALC may retain and use depersonalized campaign result data solely for purposes of reporting such results to Client, internal research and improving its products and services.
3. WishList Campaigns. This Section 3 shall apply only to the WishList Services:
(a) As provided in the applicable Order Form, ALC will create enhanced targetable lists for direct mail and email retargeting campaigns by supplementing Client’s net merged/purged customer list data (the “Client List Data”) with additional information generated by mapping Depersonalized Data from Consumers to postal addresses and other offline list information provided or sourced by ALC (collectively, the “ALC List Data,” and, individually or collectively with the Client List Data, the “List Data”). A campaign may be fulfilled by an ALC Provider or Client’s print, data processing or email service provider (“Client Provider,” and, individually or collectively with the ALC Provider(s), a “Provider” or “Providers”), as specified in the applicable Order Form. Client shall arrange for the applicable Provider to receive the Client List Data, in accordance with the Order Form and the other requirements contemplated by this Agreement. ALC shall arrange for the applicable Provider to receive the ALC List Data, specifically a list of visitors to the Client Properties during a mutually agreed (email sufficing) time period which may include (i) ALC ID’s, together with (ii) names and postal addresses provided or sourced by ALC. The Provider will then supplement the Client List Data with unique Consumers from the ALC List Data to create a targetable list (the “Final Mail List Data”). Client shall develop instructions for printing or generating direct mail or email offers and shall provide both the instructions and Creative to the Provider for use in distributing the mailings to the Consumers.
(b) Where an ALC Provider fulfills a retargeting campaign, the ALC Provider will do so in accordance with the requirements set forth in the applicable Order Form. Client is solely responsible for creating, loading and implementing onto the Platform all Creative, files and data in accordance with the terms of the applicable Order Form and/or ALC’s reasonable specifications, as previously provided to Client in writing (email sufficing) or through the Portal (as defined in Section 4(a) below). Client is solely responsible for the content of any and all Creative, and ALC shall have no liability whatsoever relating to Creative or any products or services featured therein. Following the deployment of each retargeting campaign, ALC shall provide reports to Client of campaign results as may be required in the Order Form. Client grants ALC a worldwide, non-transferable and non-sub licensable (except as expressly permitted in this Agreement), royalty-free license to, during the term of this Agreement, (i) enable the ALC Providers to use the Client List Data solely to provide the WishList Services in accordance with this Agreement; and (ii) use, reproduce, distribute and display the Creative and any Marks contained therein in connection with such services. Within seventy-two (72) hours after the printing or transmission of the marketing campaign specified in the Order Form, the ALC Provider shall securely and permanently delete all Client List Data provided for the campaign using industry best practices.
(c) Client shall use commercially reasonable efforts to cause each Client Provider to sign an agreement with ALC relating to the use of ALC List Data containing privacy and data security protections in form and substance reasonably acceptable to ALC (a “Client Provider Agreement”). Client acknowledges that ALC is under no obligation to transmit ALC List Data to any Client Provider until such Client Provider and ALC have mutually executed an acceptable Client Provider Agreement. Except for those obligations of ALC relating to the ALC List Data that are expressly set forth in this Agreement or an Order Form, ALC shall have no liability whatsoever relating to a retargeting campaign fulfilled by a Client Provider. ALC grants Client a worldwide, non-transferable and non-sub licensable (except as expressly permitted in this Agreement), royalty-free license to, during the term of this Agreement, enable the Client Providers who have executed Client Provider Agreements with ALC to use the ALC List Data solely to fulfill mailings in accordance with this Agreement, the Order Form(s) hereunder and their respective Client Provider Agreements.
(d) The Client List Data, together with any data derived from Consumer interactions with mailings deployed pursuant to this Agreement, constitute Confidential Information (as defined below) and trade secrets owned by Client. However, notwithstanding anything herein to the contrary, ALC may retain and use depersonalized campaign result data solely for purposes of reporting such results to Client, internal research and improving its products and services.
(e) The services provided by each Party’s Providers under this Agreement shall comply with the best practices of the Direct Marketing Association (the “DMA”) as promulgated by the DMA from time to time.
(f) The Client Providers shall not disclose the ALC List Data (including as part of the Final Mail List Data and also including any names or addresses) to Client or (except as required by law) to any third party (provided, however, that Client’s data processor may provide the Final Mail List Data to another Client Provider solely as necessary for the latter to deploy a campaign in accordance with this Agreement so long as the second Client Provider does not have the ability to specifically identify any ALC List Data in the Final Mail List Data). Furthermore, the Client Providers shall not merge or otherwise associate any List Data (for instance, an individual postal address) with any data indicating which offer was delivered to or selected for such List Data or disclose such merged or associated data to Client, provided however that List Data that (i) has been de-identified, such as through a one-way, irreversible hash process and (ii) is not itself associated with identifiable List Data (for instance, through a look-up table) shall not be subject to the above prohibition. The prohibition also will not prevent a Client Provider from facilitating the mechanical sending of the campaign indicated in an Order Form, provided that no List Data has been cached or otherwise stored (unless such storage is temporary and solely for purposes of campaign fulfillment, and the List Data is promptly deleted following fulfillment). Additionally, neither Party may merge or associate List Data received from or belonging to the other Party with any third-party lists or data, except as expressly permitted in this Agreement.
4. Access to Portal and Proprietary Rights; Other Matters.
(a) ALC may provide Client an initial login and password to access a portal for the Platform (the “Portal”). ALC grants Client a worldwide, non-exclusive, non-transferable, non-sub licensable, limited license to access and use the Portal pursuant to the Agreement solely to use the Remarketable Services provided through the Platform. ALC may rely on any information submitted through Client’s account for the Portal.
(b) All copyright, trademark and trade dress rights in any Creative elements or Marks provided to ALC under this Agreement are owned by Client or its licensors, as applicable. “Remarketable,” “WishList,” “TriggerMail,” and the Remarketable, WishList and TriggerMail logos are service marks owned by ALC. Any goodwill arising from usage of a Party’s Marks shall inure to that Party’s sole benefit.
(c) The Parties shall confer regularly about the progress and results of the Remarketable Services. ALC may freely use any feedback, ideas or suggestions provided by Client about the Remarketable Services without consent or any obligation to pay compensation. This Agreement is strictly non-exclusive as to both Parties. If an ALC Provider fails to meet any required distribution date for a retargeting campaign, it shall have a reasonable period, not to exceed thirty (30) days, to provide a “make good” solution.
(d) The Platform and its related services, interfaces, technology, methodologies, algorithms, features, ad tags or codes, business logic, templates, and decision rules, and any data furnished by ALC (including, but not limited to, ALC List Data), are protected under applicable intellectual property laws and, as between the Parties, constitute Confidential Information and trade secrets of ALC, in which it reserves all rights. Without limiting any of the foregoing, except for the creation of the Final Mail List Data in connection with the WishList Services as expressly permitted under Section 3(a), Client may not (or permit any third party to), copy, modify, display, distribute, disassemble or reverse-engineer such information, merge or bundle it with any other product or service, or use it to create any other product or service.
5. Suppression Lists and Opt-outs.
(a) Client shall provide up-to-date do-not-send/unsubscribe lists of email and mailing addresses (“Suppression Lists”) at a mutually agreed frequency and format. ALC shall require the ALC Providers to promptly utilize any Suppression Lists furnished by Client and suppress such addresses from future mailings on behalf of Client within five (5) business days of receipt. Each Party shall also require its Providers to comply with any other obligations relating to direct mail/email compliance that the Parties may mutually agree upon in writing from time to time and set forth in an Order Form or in an Exhibit to this Agreement. Client shall furnish ALC with a valid physical address information and a functional Internet-based opt-out mechanism for use in commercial emails as required by the CAN-SPAM Act of 2003 and its associated rules and regulations (“CAN-SPAM”) and shall honor all email opt-outs as required by CAN-SPAM and in any event within five (5) business days of receipt. The Parties shall also cooperate reasonably to implement any other measures necessary to enable each Party to comply with its obligations under CAN-SPAM.
(b) ALC and Client shall each, and shall require their respective Providers to, promptly (but in all events within three (3) business days after receipt) honor any requests by Consumers to opt-out of retargeting or targeted advertising in connection with this Agreement.
6. Privacy; Other Compliance Obligations.
(a) As used herein, “Privacy Laws” means any foreign, federal, state and local laws, rules or regulations (including, but not limited to, Federal Trade Commission rules and guidelines) relating to privacy or data security. Each Party agrees to comply with, and to reasonably assist the other Party to comply with, all Privacy Laws applicable to its activities as contemplated by this Agreement.
(b) Each Party agrees to provide any assistance to the other Party it reasonably requests to resolve any complaints or issues raised by Consumers or third-party data owners in connection with this Agreement, and, unless prohibited by applicable law, to forward to the other Party any Consumer complaints or governmental inquiries it receives in connection with this Agreement within five (5) business days.
(c) Each Party also represents, warrants and covenants that it will use reasonable and appropriate administrative, technical and physical safeguards, compliant with the Privacy Laws and best practices in the direct marketing industry, to protect nonpublic personal information received from or belonging to the other Party from unauthorized use, modification, loss, access, disclosure or destruction and will ensure that its employees, Providers and other service providers do the same. If a Party becomes aware or has reason to suspect that any unauthorized disclosure, use, access, destruction or modification of nonpublic personal information received from or belonging to the other Party has occurred, such Party shall (x) promptly (but in any event within forty-eight (48) hours after learning of an incident) notify the other Party in writing and furnish all available information about the incident, and (y) thereafter cooperate fully and promptly with the other Party’s reasonable requests in connection with investigating and remediating any such incident (including making available for inspection or interviews its server logs, personnel, and other applicable documentation). Each Party shall also require and cause its Providers and other service providers to comply with the same requirements.
7. Term and Termination.
(a) The term of this Agreement shall commence upon Client’s acceptance of this Agreement (the “Effective Date”) and shall continue until this Agreement is terminated in accordance with its terms. An Order Form, however, may provide a specific term or duration for a particular retargeting campaign. After the first anniversary of the Effective Date, either Party may terminate this Agreement upon ninety (90) days’ prior written notice in the event that there are no outstanding Order Forms hereunder. Otherwise, either Party may terminate this Agreement in the event of any material breach; provided that the terminating Party gives the other written notice specifying such breach and ten (10) business days to cure the breach. Except in the event of termination for material breach as provided in the preceding sentence or as otherwise provided in subsection (b) below, this Agreement may not be terminated so long as any Order Form hereunder remains outstanding.
(b) ALC may also temporarily suspend or terminate a retargeting campaign under this Agreement at any time, with at least twenty-four (24) hours’ prior written notice (email sufficing) to Client, if ALC reasonably believes that such action is necessary to comply with the Privacy Laws or to avoid or mitigate civil or criminal liability.
(c) Upon any termination of this Agreement: (i) all licenses granted hereunder, including in any Depersonalized Data or List Data, shall immediately terminate (provided, however, that neither Party shall be required to withdraw direct mailings currently in process); (ii) each Party shall otherwise use commercially reasonable efforts to return or destroy the other Party’s Confidential Information then in its possession or control; and (iii) ALC shall refund to Client any unused postage fees prepaid for TriggerMail campaigns.
(a) Client shall pay ALC the fees and other amounts specified in each Order Form. Unless a different payment schedule is set forth in an Order Form, ALC shall invoice Client for fees and out-of-pocket costs due under this Agreement on a monthly basis, and all invoices shall be payable within thirty (30) days after receipt; provided, however, that ALC shall invoice Client for postage fees for TriggerMail campaigns prior to campaign launch and such fees shall be payable prior to launch. All invoicing will be based on ALC’s reporting. Except for taxes on ALC’s net income, all value added, sales, use, excise and other taxes arising out of or relating to this Agreement shall be the responsibility of Client.
(b) Client shall maintain true and correct books of account containing a record of all information pertinent to the transactions contemplated by this Agreement during the term of this Agreement and for a period of two (2) years after any expiration or termination hereof. ALC or its auditors shall be entitled to review, at ALC’s expense, during regular business hours and upon not less than five (5) business days’ notice, such books and records for the purpose of verifying the accuracy of the payments made under this Agreement. Any such review will be made not more than twice in each calendar year. Client shall, within fifteen (15) days after receipt of the review’s findings, pay to ALC any amount found to be owing. If based on any such review, it is ultimately determined that ALC was underpaid by an amount equal to or greater than ten percent (10%) for the period under audit, then the reasonable out-of-pocket costs incurred by ALC in connection with the review shall be reimbursed by Client within fifteen (15) days after demand therefor, which demand shall be accompanied by information supporting such out-of-pocket expense.
9. Confidentiality; Non-Circumvention.
(a) Each Party agrees it will: (i) not disclose to any third party or use the other’s Confidential Information except as expressly permitted in this Agreement or as otherwise necessary to perform its obligations or exercise its rights hereunder; and (ii) take all reasonable measures to maintain the confidentiality of the other Party’s Confidential Information in its possession or control. “Confidential Information” of a Party shall mean all information of, or concerning, such Party or its affiliates which is confidential, proprietary and/or competitively sensitive (or which such Party is required by a third party to keep confidential) and is disclosed to or obtained by the other Party. Without limiting the foregoing, ALC’s Confidential Information includes any information relating to the performance of the Platform. Confidential Information does not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving Party rightfully receives from a third party without restriction on disclosure; (iii) the receiving Party lawfully knew prior to receiving such information from the disclosing Party; or (iv) is independently developed by the receiving Party. In addition, each Party may disclose Confidential Information as necessary to comply with the requirements of legal or administrative process, provided that such Party provides the other Party with reasonable advance notice of any such intended disclosure. Finally, except as required by law or with the written consent of both Parties, neither may make any press release or other public announcement regarding this Agreement; however, ALC may include Client’s name and logo in a list of clients of the Platform.
(b) Client agrees and acknowledges that ALC has proprietary relationships with advertisers, customers, publishers, other data owners, and service providers that participate in or provide services in connection with ALC’s list creation/enhancement and retargeting programs (collectively, “Partners”). Accordingly, during the term of this Agreement and for one (1) year after the expiration or any termination hereof, neither Client nor any affiliated company may, directly or indirectly, solicit or communicate with any Partner which Client knows or reasonably should know has an agreement with ALC for the purpose of inducing such Partner to terminate or reduce the scope of its business relationship with ALC or to engage directly with Client to provide substantially similar services to the Remarketable Services.
(c) Any breach of either Party’s obligations under this Section 9 would result in irreparable injury, and, in addition to any other available remedies, a Party may seek injunctive relief to restrain any actual or threatened breach hereof, without the necessity of posting bond.
10. Representations and Warranties.
(a) Each Party represents and warrants to the other that it has full authority to enter into this Agreement. Client represents and warrants that (i) it has the right to provide the Depersonalized Data and Client List Data (as applicable) to ALC for the uses contemplated by this Agreement, and such provision of data will not violate any applicable Privacy Laws or any other laws, rules or regulations; and (ii) the Creative and Client’s Marks will not infringe any intellectual property, publicity or other proprietary rights of a third party, violate any applicable laws, rules or regulations, or contain any defamatory, obscene, sexually explicit, false, deceptive, misleading, unlawful or harmful material. ALC represents and warrants that, subject to Client’s compliance with its obligations in this Agreement, (i) the Platform will not infringe the intellectual property, publicity or other proprietary rights of a third party or violate any applicable laws, rules or regulations; and (ii) if applicable, it has the right to provide the ALC List Data for use in the services contemplated by this Agreement, and such provision of data will not violate any applicable Privacy Laws or other laws, rules or regulations.
(b) EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO ITS PLATFORM, TECHNOLOGY, DATA OR SERVICES (WHICH ARE PROVIDED “AS IS”), INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SECURITY, FREEDOM FROM VIRUSES, OR REVENUE POTENTIAL. CLIENT ACKNOWLEDGES THAT ALC’S PLATFORM AND REMARKETABLE SERVICES ARE IN BETA STAGE AND MAY EXPERIENCE ERRORS AND DEFECTS.
11. Indemnification and Limitation of Liability.
(a) Each Party agrees to indemnify, defend and hold the other Party, its affiliates and its and their respective officers, directors, members, managers, employees, publishers, clients, service providers and data owners (collectively, “Indemnitees”) harmless from and against any and all losses, damages, fines and other costs, including reasonable attorneys’ fees (collectively, “Losses”), arising from a third-party claim, demand or proceeding based upon an actual or alleged breach of such Party’s representations and warranties in this Agreement. Client also agrees to indemnify, defend and hold ALC’s Indemnitees harmless from and against any Losses arising from a third-party claim, demand or proceeding based upon any products or services featured in the Creative or any actual or alleged failure to comply with Section 6(d) of this Agreement.
(b) EXCLUDING EACH PARTY’S OBLIGATIONS UNDER SECTIONS 9 AND 11(a) AND CLIENT’S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, OR ANY DAMAGES FOR LOST PROFITS, DATA OR BUSINESS, ARISING OUT OF THIS AGREEMENT, OR ANY OTHER DAMAGES EXCEEDING IN THE AGGREGATE, FOR ANY AND ALL CLAIMS, THE AMOUNTS PAID TO ALC UNDER THE ORDER FORM TO WHICH THE CLAIM OR CLAIMS RELATE, EVEN IF SUCH PARTY KNOWS OF THE POSSIBILITY OF SUCH DAMAGES.
(a) Waiver; Severability. Any waiver relating to this Agreement must be in writing and signed by the Party to be charged. All provisions of this Agreement are severable.
(b) Force Majeure. Neither Party shall be liable for any delay or failure to perform as required by the Agreement due to acts of God, malicious acts of third parties, failures of common or mail carriers or the Internet, or any other conditions which are beyond such Party’s reasonable control. However, a delay or failure by a Party’s Provider does not constitute a force majeure event, and the Party will be deemed responsible for any such delay or failure.
(c) Relationship of the Parties. The Parties to the Agreement are independent contractors. Neither Party is a legal agent, representative, partner, joint venturer or employee of the other Party.
(d) Survival. Sections 2(c), 3(d), 3(f), 4(b), 4(d), 8-9, 10(b), and 11-12 of this Agreement shall survive any termination hereof, along with any other provisions that, by their nature, are intended to survive termination.
(e) Entire Agreement; Amendment. This Agreement is the entire agreement and supersedes any and all prior understandings between the Parties with respect to the transactions set forth herein. ALC may update the terms of this Remarketable Client Agreement (but not an Order Form) by emailing Client at the address provided on the latest Order Form or notifying Client through the Portal and including a link to the updated terms. Any such updates shall apply only to Order Forms entered into by the Parties on or after the date of the updates; prior Order Forms shall continue to be governed by the previous terms. Except as provided herein, no modification of any provision of the Agreement will be valid unless set forth in a written instrument signed by the Parties.
(f) Assignment. Neither Party to the Agreement may assign this Agreement or its rights or obligations hereunder (other than to an affiliate or a successor-in-interest to its business) without the prior written consent of the other Party.
(h) Governing Law. This Agreement shall be governed by the laws of the State of New Jersey without regard to any conflict of laws provisions thereof. The exclusive venue for adjudication of any dispute arising out of this Agreement shall be the state and federal courts in and for Trenton, New Jersey, and each Party hereby consents to the jurisdiction of such courts.
(i) Notices. Unless otherwise specified in this Agreement, all notices hereunder shall be in writing, shall be mailed by first-class certified U.S. mail, postage prepaid, return receipt requested, and shall be effective upon receipt.