PEOPLECLOUD SUITE OF PRODUCTS

MASTER SERVICES AGREEMENT

BY PROCEEDING WITH THE SUBSCRIPTION TO A SERVICE (INCLUDING ANY SOLUTION), AND ANY OTHER SERVICES THAT MAY BE PROVIDED TO YOU BY EPSILON PURSUANT TO A MUTUALLY EXECUTED STATEMENT OF WORK, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE MASTER SERVICES AGREEMENT BELOW AND THE DATA PROCESSING ADDENDUM REFERENCED HEREIN. ALL SERVICES MUST BE DOCUMENTED IN A MUTUALLY EXECUTED STATEMENT OF WORK BETWEEN THE PARTIES.

IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN EMPLOYEE, CONTRACTOR OR OTHER AGENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE ACTUAL AUTHORITY TO LEGALLY BIND SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT PROCEED WITH SUBSCRIPTION AND YOU MAY NOT USE THE SERVICES.

EPSILON RESERVES THE RIGHT TO REVIEW THE REQUESTED ENGAGEMENT AND THE INFORMATION SUBMITTED UPON RECIEPT OF THIS MSA AND TO CONDUCT A COMPLIANCE REVIEW OF THE CLIENT. IF NECESSARY, EPSILON MAY: (1) REQUEST ADDITIONAL INFORMATION FROM THE CLIENT, AND/OR (2) CANCEL THE ENGAGEMENT AND DECLINE TO PROVIDE A SUBSCRIPTION AND/OR OTHER SERVICES TO THE CLIENT IF IT DETERMINES, IN ITS REASONABLE DISCRETION, THAT THE CLIENT DOES NOT MEET ITS MINIMUM COMPLIANCE REQUIREMENTS.

This PeopleCloud Master Services Agreement (the “MSA”) is made and entered into as of the date of acceptance by Client, and is between Client and Epsilon Data Management, LLC (“Epsilon”). “Client” refers to the entity placing an order for or accessing the Services. Client and Epsilon are referred to individually as a “Party,” and collectively as the “Parties.”

Epsilon provides various marketing products and services, including its proprietary PeopleCloud product suite (collectively, the “Services”). The Services may include hosted software as a service-based solution (each, a “Solution”). Client desires for Epsilon to provide certain Services to it as detailed in individual statements of work. Additional terms and conditions applicable to specific Service types are set forth in Exhibit A (ID-Based Products) and Exhibit B (Name-Based Products), each of which is incorporated herein.

NOW, THEREFORE, for and in consideration of the Parties’ agreements set forth below and intending to be legally bound, the Parties agree as follows:

1. Principles of Agreement.
   1. MSA and SOWs. This MSA sets forth the terms applicable to all Services. The Services to be provided and any Service-specific terms will be agreed to by entering into one or more statements of work (each, an “SOW”). In the event of a conflict or inconsistency between the terms of an SOW and this MSA, the terms set forth in the SOW will in all cases control with respect to the Services provided pursuant to such SOW. This MSA, DPA and all SOWs are collectively referred to herein as the “Agreement.”
   2. Client Affiliates. A Client Affiliate (as defined herein) may leverage the terms of this MSA by executing an SOW pursuant to this MSA. Should a Client Affiliate enter an SOW referencing this MSA as the governing document, such action shall constitute an adoption by the Client Affiliate of all the terms of this MSA and DPA for the purpose of the Services provided pursuant to such SOW. Similarly, an Epsilon Affiliate may be named as a signatory to an SOW. Such action shall constitute an adoption by the Epsilon Affiliate of all the terms of this MSA for the purpose of the Services provided pursuant to such SOW. “Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with the applicable Party. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the applicable Party.
2. Term and Termination.
   1. Term of MSA. This MSA shall remain in effect until terminated by either Party with thirty (30) days’ prior written notice, provided that if any SOWs are in effect at the time of termination, this MSA will continue in effect for the duration of the term of such SOWs.
   2. Termination Without Cause. Client’s rights to terminate an SOW prior to its then current term without cause, if any, will be stated in each SOW as agreed upon between the Parties. Any exercise of Client’s no cause early termination rights is subject to the Client’s payment for all Services provided through the agreed upon last day of Services, all non-cancellable costs, and any other no cause early termination fee, if and as specifically agreed upon in the applicable SOW. If no early termination for convenience terms are identified in an SOW, then the term of that SOW shall be considered non-cancellable and a material consideration for the SOW fees agreed upon therein.
   3. Termination for Cause. If a Party breaches a material term of this MSA or any SOW, the non-breaching Party may provide notice of such breach to the breaching Party that identifies the suspected breach with reasonable specificity. The non-breaching Party shall cure such breach within thirty (30) days after receipt of the breach notice. If the breach remains uncured at the end of the thirty-day period, the non-breaching Party may, upon notice to the breaching Party, immediately terminate: (a) the applicable SOW for a service-related breach of a material term of such SOW, or (b) the MSA and all outstanding SOWs for a breach of a material term of this MSA.
   4. Termination of SOWs. In the event that: (i) a Party becomes insolvent; (ii) a Party admits in writing its inability to meet its debts generally as they become due; (iii) a Party makes a general assignment for the benefit of creditors; (iv) a Party suffers or permits the appointment of a receiver, trustee, liquidator, or conservator for its business or assets; (v) a Party avails itself of, or becomes subject to, any proceeding under the Federal Bankruptcy Act or any other statute of any state relating to insolvency or the protection of rights or creditors; or (vi) proceedings are commenced for dissolution, winding-up, or liquidation of a Party, then, at the option of the other Party, all applicable SOWs will terminate immediately.
   5. Events Upon Termination of SOW. The final Epsilon invoice(s) for any and all terminated SOWs shall include all fees and non-cancellable charges incurred through the effective date of termination of the applicable SOW. Payment of the final invoice(s) shall not bar any remedy, legal or equitable, otherwise available to either Party.
3. Fees and Taxes.
   1. Fees and Invoice Schedule. Client will pay to Epsilon the fees and other charges enumerated in the applicable SOW(s) as may be amended from time to time. The SOW will indicate when Epsilon will invoice for the Services. Should the SOW fail to state a specific invoice schedule, Epsilon shall invoice fees monthly.
   2. Payment. Client shall pay Epsilon the entire amount invoiced within thirty (30) days after the invoice date. In the event Client fails to pay any undisputed invoice within sixty (60) days from the invoice date, Epsilon shall be entitled to charge interest on the late balance in an amount of 1.5% per month from the due date until such invoices are paid in full. Client shall notify Epsilon within thirty (30) days of the invoice date should Client have reason to believe the invoice is inaccurate. The Parties will work in good faith to review and resolve any discrepancies, escalating to appropriate personnel as needed, to resolve any discrepancy within an additional thirty (30) days. Client will not be entitled to deduct or offset any amounts payable to Epsilon against any amount or liability that Epsilon or its Affiliates may owe Client or any Client Affiliate.
   3. Transaction Taxes.
      1. Client shall pay or reimburse Epsilon for all sales, use, value added tax, goods and services tax, or other taxes of a similar nature (“Transaction Taxes”). Transaction Taxes imposed on the sale of Services sold to Client under the Agreement. Epsilon will separately state the applicable Transaction Taxes on an invoice and remit the same to the relevant tax authorities. Client shall pay the amount (including Transaction Taxes) reflected on the invoice.  Client shall provide Epsilon with and Epsilon shall accept in good faith, resale, direct pay, or other exemption certificates, as applicable for exemption from Transaction Taxes.  Epsilon and Client agree to reasonably cooperate with each other to minimize any Transaction Taxes in connection with the Agreement. Client shall be responsible for any Transaction Taxes applicable to work performed for Client, which may at any time be levied as a result of an audit by a taxing authority having jurisdiction.
      2. If Client is required by law to withhold from any amount payable hereunder to Epsilon, then the sum payable by Client upon which the deduction is based shall be paid to Epsilon net of such deduction or withholding. Client shall pay the applicable tax authorities any such required deduction or withholding. However, prior to the execution of an SOW, Client shall notify Epsilon of its intention to withhold on any payment under such SOW and shall reasonably cooperate with Epsilon to reduce such withholding.  Client shall withhold at the lowest allowed rate and provide Epsilon with the receipt reflecting the payment to the tax authority.
   4. Local to Local Country Invoicing. Both Client and Epsilon agree that any SOW executed under the Agreement should be executed between the Client Affiliate and Epsilon Affiliate located within the same country. In the event that local to local invoicing and payment is not possible, the Parties shall reasonably cooperate and mutually agree on the most tax efficient invoicing and payment structure. In instances where Client has specifically requested a certain method of delivery of the Services or a specific method of invoicing that would create non-recoverable withholding or non-recoverable Transaction Taxes or similar type taxes for Epsilon, Epsilon will inform Client in writing of the additional costs to be incurred prior to the fulfillment of Client’s request. Upon Client's receipt and written acceptance of the additional tax costs, Epsilon may fulfill the request and receive reimbursement from Client of any incremental tax cost incurred.
4. Confidential Information.
   1. Definition of Confidential Information. “Confidential Information” means all information that relates to the products, services, business or affairs of the disclosing Party, and all documents and other tangible materials and things that record such information, provided by or on behalf of a Party that is identified as confidential or proprietary, is a trade secret, or is information that a reasonable person in similar circumstances would consider it to be confidential based on industry standards or prudent business judgment. The terms and conditions of the Agreement shall be considered Confidential Information of both Parties and shall not be disclosed without the other Party’s written consent or in compliance with a legal order. Confidential Information does not include information, even if designated by a Party, that: (a) is or becomes generally available to the public without breach of the Agreement; (b) can be documented was in the possession of the receiving Party prior to its disclosure by the disclosing Party; (c) becomes available from a third party not in breach of any obligations of confidentiality and without knowledge by the receiving Party of any breach of a fiduciary duty or obligation; or (d) can be documented was independently developed by the receiving Party without reference to or reliance upon the disclosing Party’s Confidential Information, as demonstrated by documentary evidence.
   2. Safeguards. Each Party shall hold the other Party’s Confidential Information in confidence with reasonable safeguards, which in any event shall be no less stringent than those used to protect its own Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any third party unless the disclosure was at the specific written direction of the disclosing Party, or otherwise authorized in writing by the disclosing Party. An email from the disclosing Party shall satisfy as written direction of authorization.
   3. Legal Obligations. A Party may disclose the Confidential Information of the other Party only to the extent required pursuant to a duly authorized subpoena, court order or government authority, provided that the disclosing Party responding to the subpoena, court order or government authority has first provided prompt notice to the other Party to allow the other Party to seek a protective order or other appropriate remedy.
   4. Permitted Use. The receiving Party shall only use the Confidential Information of the disclosing Party to: (a) provide or receive Services (as the case may be) pursuant to an SOW, (b) further the business relationship between the Parties, (c) evaluate a possible future relationship between the Parties, or (d) any other specific purpose, as may be agreed to in writing by the Parties.
   5. Return or Destruction. Upon termination or expiration of the applicable SOW, each Party shall securely delete all originals and copies of the other Party’s Confidential Information (whether in electronic or hard copy form) in its possession, custody, or control in accordance with the requirements of the Agreement and Laws (as defined below), or return such Confidential Information to the other Party, except for any copies that are retained on archived backup tapes, pursuant to the Party’s internal policies.
5. Personal Information. In the event the Services involve the receipt of personal data subject to data protection law, the Parties agree to execute and comply with the terms and conditions set forth in the Data Processing Addendum (“DPA”) mutually executed by the Parties. Such DPA constitutes a part of, and is incorporated into, this MSA.
6. Representations and Warranties.
   1. Mutual Representations and Warranties. Each Party represents and warrants to the other that in performing its respective responsibilities and exercising its rights under the Agreement, it will comply with all federal, state and local laws, rules, regulations, ordinances and codes, including without limitation privacy laws, consumer protection laws, data security laws, advertising laws and regulations, and anti-corruption and anti-bribery laws as applicable to it (collectively, “Laws”). If new Laws or material changes to Laws passed after the effective date hereof require changes to the Services, any such required changes are not included in the scope of Services or contemplated by any Solution and must be addressed by mutual agreement of the Parties.
   2. Client Representations and Warranties. Client warrants and represents that neither Client nor any of its affiliated companies is currently subject to any federal, state or local regulatory or self-regulatory investigation or proceeding relating to its advertising or marketing practices and that it has disclosed to Epsilon any instance where it or any affiliated company has been the subject of any such federal, state, or local regulatory or self-regulatory investigation or proceeding. Client further agrees that it will promptly notify Epsilon should it, or any affiliated company become the subject of any such regulatory investigation, proceeding or inquiry.
7. Responsibilities of the Parties.
   1. Background Checks. As a condition to employment at Epsilon all Epsilon employees and individual contractors at or near the time of their employment will have undergone, passed, and/or completed a background check(s) conducted by Epsilon’s third party vendor (the “Epsilon Background Checks”), as set forth in this section. Subject to Laws and taking into account the varying Laws that apply in each state, the Epsilon Background Checks performed on such United States resident personnel will include the following: (a) a search of county, state and federal criminal records, (b) a search of national criminal database records, (c) a search of an international criminal records searches where applicable, (d) a social security number validation, (e) a search of the Office Foreign Assets Control (OFAC) list of prohibited or sanctioned persons, (f) a search of the U.S. General Services Administration’s (SAM) list of persons excluded from federal programs, (g) a search of the Office of Inspector General’s (OIG) list of persons excluded from particular federal programs and (h) sex offender registry searches. The Epsilon Background Checks details listed above are specific to its United States personnel. The Epsilon Background Checks performed on its foreign personnel will utilize the available criminal database records maintained in the resident country and follow the standard practices and Laws of such countries. More specifics about the Epsilon Background Checks conducted in other countries may be made available upon request. An Epsilon special committee reviews background check reports where there are any discrepancies to ensure Epsilon does not hire personnel whose background presents an undue risk to Epsilon or its clients and customers, especially in the criminal categories of dishonesty, theft or violence.
   2. Intellectual Property. In the event of a third party claim against either Epsilon’s intellectual property or right to offer any good or service, or if, in Epsilon’s opinion, such a claim is likely, Epsilon shall have the right, in its sole discretion and as Client’ sole and exclusive remedy, to: (a) secure the right to continue using the intellectual property, good, or service; (b) replace or modify the intellectual property, good, or service to make it non-infringing, provided that any such replacement or modification will have similar operating capabilities and functionalities of the allegedly infringing intellectual property, good, or service provided hereunder; or (c) terminate the affected SOW or this MSA immediately, in whole or in part, if it is unable to secure, replace, or modify the intellectual property, good, or service as set forth in subsections (a) and (b) herein.
   3. Locations. Epsilon may use its personnel located in any of its worldwide office locations, including its Canada, Argentina, and Bangalore, India office locations, in its discretion to most efficiently and effectively provide, support, or supplement the Services. In providing such support functions, Epsilon’s offshore resources may have access to Personal Information. The security standards referenced in this MSA shall apply to Epsilon’s offshore locations as well as Epsilon’s United States locations.
   4. Provision of Client Materials.
      1. With respect to any content, data, information, software, Personal Information, or other materials provided to Epsilon by Client (whether directly by Client or by a third party) (“Client Materials”), Client further represents and warrants to Epsilon that (a) Client’s provision of such Client Materials in connection with the Services and any Solution, and Epsilon’s use of such Client Materials to perform the Services and provide any Solutions, will conform with Laws, Client’s privacy policy, and any agreement to which Client is bound; and (b) Client will not direct Epsilon to access, receive, store, use or disclose Client Materials on Client’s behalf in a manner that would violate any of the foregoing.
      2. In connection with the Services, Client agrees that it may be required to provide (either directly or through designated partners) creative assets, imagery and other marketing or informational content, including approved messages, offers, reviews, endorsements and/or testimonials, images, fonts, logos and other elements (any such materials created or disseminated in connection with the Services are collectively referred to as “Marketing Content,” whether or not Client provides such Marketing Content to Epsilon). Client represents and warrants that all such Marketing Content: (a) will include only accurate, complete and appropriate information concerning Client’s organization, products and services or those of its competitors (including product and performance data, claims and comparisons), which information, whether direct or implied, will be supportable by competent and reliable evidence, which may consist of tests or other authentic and objective data as required by Laws (which shall be provided to Epsilon upon reasonable request); (b) include any and all required labelling, product information, disclaimers, warnings, privacy notices and other legal copy as required by applicable Laws and applicable regulatory guidance; (c) will either be owned by Client or properly licensed with any required release(s) as necessary for use by Client and Epsilon in connection with the Services and will not violate the copyrights, trademarks, rights of privacy or publicity or other intellectual property rights of any person or entity; and (d) will not contain or promote obscene, abusive, violent, bigoted, or hate-oriented content or conduct or otherwise encourage or promote the same. Client remains responsible for all final legal reviews, approvals and clearance for Client use of any Marketing Content, including without limitation, ensuring that the Marketing Content complies with all Laws.
   5. Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS MSA, EPSILON MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES HEREUNDER AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES REGARDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EPSILON WILL NOT BE DEEMED TO BE IN BREACH OF ANY REPRESENTATION OR WARRANTY TO THE EXTENT THAT SUCH BREACH RESULTS FROM THE ACT OR OMISSION OF A THIRD PARTY THAT IS NOT A VENDOR OR A SUBCONTRACTOR OF EPSILON.
8. Intellectual Property.
   1. Work Product. Upon payment by Client of the fees set forth in an SOW, the reports, materials, or other tangible goods generated by the Solution or otherwise first created specifically for Client as part of the Services that are specifically set forth in an SOW, but excluding all Epsilon Technology and any data provided by Epsilon to Client, either directly or via the Solution (“Work Product”) produced pursuant to such SOW shall become the property of Client.
   2. Epsilon Technology. Client acknowledges that Epsilon will retain all right, title and interest in and to the Solutions, all components thereof and pre-existing content incorporated therein, and to any other code, software programs, processes, methodologies, algorithms, templates, tools and related know-how used by Epsilon in connection with the performance or delivery of Services, and all derivative works, modifications and enhancements thereto (collectively, “Epsilon Technology”). Epsilon Technology is considered Epsilon Confidential Information and is owned by and remains the property of Epsilon or its third-party licensor(s).
   3. Epsilon DII-Based Data. “Epsilon DII-Based Data” is data and information generated, created, licensed, or collected by Epsilon that is based on any information used or intended to be used to identify a particular individual and includes within limitation, Epsilon Total Source Plus dataset, Epsilon’s Shopper’s Voice dataset, Epsilon transactional data and all derivates thereof. Epsilon DII-Based Data is Epsilon Confidential Information and shall remain the property of Epsilon or its third-party licensor(s). Such Epsilon DII-Based Data, if provided to Client for its marketing use, shall be subject to data license terms as specified in the applicable SOW.
   4. No Additional License. Client acknowledges that in receiving Services hereunder, Client shall obtain no rights to the Epsilon Technology or Epsilon DII-Based Data beyond the use and duration specified in the applicable SOW.
   5. Residual Knowledge. The Parties shall have the right to retain and use any general skills, ideas, methodologies, concepts, know-how and expertise that either learns, obtains, uses, develops or creates in the rendering or receipt of Services, to the extent such ideas, concepts, strategies, inventions and know-how are of generic applicability and are acquired and applied without disclosure of any Confidential Information or proprietary information of the other Party.
9. Limitations on Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 10.1(a) AND 10.1(c), IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING IN ANY WAY OUT OF THE AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 10.1(a) AND 10.1(c), EACH PARTY’S MAXIMUM AGGREGATE LIABILITY WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR AGREED TO BE PAID TO EPSILON UNDER THE APPLICABLE SOW DURING THE PRECEDING TWELVE (12) MONTH PERIOD. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND REGARDLESS OF THE THEORY ON WHICH DAMAGES ARE SOUGHT, INCLUDING, WITHOUT LIMITATION, CONTRACT, STATUTE OR TORT. THEY SHALL NOT APPLY TO THE EXTENT THAT DAMAGES CANNOT BE LIMITED UNDER APPLICABLE MANDATORY LAW.
10. Indemnification
    1. Indemnification Scope. Each Party shall indemnify, defend and hold harmless the other Party, its employees, principals (shareholders or holders of an ownership interest, as the case may be), officers, directors, and Affiliates from and against any third party allegations, actions, causes of action, lawsuits and other third party claims, and resulting damages, liabilities, obligations, costs and expenses (including reasonable attorneys’ fees, court costs, and witness fees) to the extent arising out of or resulting from: (a) the indemnifying Party’s breach of its representations or warranties in the Agreement; (b) the indemnifying Party’s breach of its obligations under the DPA; and (c) with respect to Client’s obligation to indemnify Epsilon pursuant to this Section 10, Client’s marketing or advertising of Client’s products and services.
    2. Procedure. To receive the foregoing indemnities, the Party seeking indemnification shall promptly notify the other in writing of a claim or suit. Failure to give such prompt notice, however, will not relieve the indemnifying Party of its obligations under this Section, except to the extent of losses that would have been avoided had such notice been given. The indemnified Party will fully cooperate with the indemnifying Party to enable the indemnifying Party to fulfill its obligations hereunder with respect to any claim. The indemnified Party, at its own expense, may participate in the defense, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any claim. Participation in the defense shall not waive or reduce any obligations of the indemnifying Party to indemnify or hold the indemnified Party harmless. The indemnifying Party may enter into a settlement only if it: (a) involves only the payment of money damages by the indemnifying Party; and (b) includes a complete release of the indemnified Party. Any other settlement will be subject to written consent of the indemnified Party, which consent shall not be unreasonably withheld or delayed.
11. Insurance. Epsilon will maintain insurance with reputable insurance carriers with the following types and limits:
    1. Commercial General Liability. $1,000,000 each occurrence, $2,000,000 aggregate. Coverage will be primary and non-contributory to any other insurance available to Client.
    2. Excess Liability. $5,000,000 per occurrence, $5,000,000 aggregate. This policy will be in excess of the Commercial General Liability and Employer’s Liability policies and follow the form or at least as broad in coverage. Coverage will be primary and non-contributory to any other insurance available to Client.
    3. Workers Compensation and Employer’s Liability. The statutory amount for the state(s) in which Services are to be rendered hereunder and a policy of Employer’s Liability Insurance with minimum limits of $1,000,000 for bodily injury each accident, $1,000,000 for bodily injury by disease policy limit and $1,000,000 for bodily injury by disease each employee.
    4. Professional Liability/Errors & Omissions. $5,000,000 each claim and $5,000,000 annual aggregate covering liabilities for financial loss resulting or arising from acts, errors, or omissions in rendering professional services under this Agreement, including professional liability insurance, intellectual property infringement insurance, and data protection liability insurance (aka cyber liability). Coverage is for Epsilon, as the insured, to cover claims made against Epsilon by an injured party. This coverage excludes the insured. As such, Client may not be named as an additional insured for this coverage on a certificate of insurance as doing so would void the insurance coverage and protection for the benefit of Client.
12. Miscellaneous
    1. Federal Subcontracting and Equal Employment Opportunity. Client shall notify Epsilon in writing should it have reason to believe that any services Epsilon will provide to Client are in support of a Client obligation to a federal government entity that may reasonably deem Epsilon a federal subcontractor. Epsilon is an equal opportunity employer. Epsilon has progressive hiring policies and practices to ensure equal hiring opportunities for persons of all races, ethnicities, and gender. Epsilon does not, however, maintain any formal federally defined affirmative action plan or quota. Epsilon considers all vendors it does business with using an objective merit-based vendor due diligence process without regard to the racial, ethnic or gender makeup of the business owners. Epsilon does not have any specific goals with respect to using vendors who are designated as a historically disadvantaged business owner. To the extent Epsilon tracks such information, it is at Epsilon’s discretion, and may be shared with Client upon request.
    2. Marketing and Publicity. Client agrees that Epsilon may identify Client as an Epsilon client for the specified Services in client lists and in other communications and materials. Additionally, if requested by Epsilon, Client will reasonably consider participating in a written press release with Epsilon regarding the Services provided hereunder. In connection with its request, Epsilon will provide to Client a copy of the proposed press release for Client review and approval.
    3. Legal Notices. Any notices required or permitted pursuant to the MSA or an SOW shall be in writing and addressed to the relevant Party at the following address: (1) if to Epsilon: Epsilon Data Management, LLC, 6021 Connection Drive, Irving, TX 75039, Attn: Legal Departement/Urgent, with a copy to LegalNotices@epsilon.com; (2) if to Client: [Client Name], [Address], [City, State, Zip], [Attn], with a copy to [Email]. Notice will be sent by overnight, second day, or certified mail, and will be deemed received upon actual receipt. The sender of the notice shall be responsible for ensuring an appropriate and reliable tracking mechanism to verify delivery and receipt of such notice to the intended Party.
    4. Force Majeure. Except for Client’s payment obligations, no Party to the Agreement shall be liable to the other Party by reason of any failure or delay in performance if such failure or delay arises out of causes beyond the reasonable control and without the fault of such Party. Such causes may include, but are not limited to: acts of God or of the public enemy, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unavailability of energy resources, unavailability of telecommunications or internet services, riots or war, or any unusually severe weather condition (each, a “Force Majeure Event”). If a Force Majeure Event occurs, the disabled Party shall promptly and in writing advise the other Party whether it is unable to perform due to the Force Majeure Event, the expected duration of such inability to perform, and of any developments (or changes therein) that appear likely to affect the ability of the disabled Party to perform any of its obligations in whole or in part.
    5. Waivers. No waiver by either Party of any default hereunder by the other shall operate as a waiver of any other default or of a similar default on a future occasion. No waiver of any term or condition hereof by either Party shall be effective unless the same shall be in writing and signed by both Parties.
    6. Severability. In the event that any provision of the Agreement (other than a provision that goes to the essence of the consideration for this Agreement) is declared invalid, unenforceable or void, to any extent, by a court of competent jurisdiction, the remainder of this Agreement and the application thereof shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
    7. Choice of Law and Attorneys’ Fees. The plaintiff to any litigated dispute arising out of or relating in any way to the Agreement will have the option of selecting venue, and the other Party shall consent to such venue and exclusive jurisdiction, in any of the following States: New York, Delaware, Texas, or Illinois. This Agreement shall be governed by the laws of the State selected for venue without respect to its choice of law rules. The prevailing Party of any litigated dispute arising out of or relating in any way to the Agreement will receive its reasonable attorneys’ fees, together with its reasonable costs and expenses incurred resolving the dispute, as part of the judgment.
    8. Modifications; Entire Agreement. The Agreement may not be modified except as mutually agreed upon in writing, signed by an authorized representative of each Party. The Agreement shall supersede all prior agreements, communications, representations and understandings, either oral or written, between Epsilon and Client with respect to the subject matter contained herein. All terms and conditions on any Client-issued purchase order, order acknowledgment, or other similar documents in connection with the Services herein shall be deemed deleted and of no force or effect.
    9. Relationship of Parties. Epsilon is an independent contractor of Client. Nothing herein shall be construed as creating a joint venture, partnership or similar relationship.
    10. Cumulative Rights. Except as otherwise expressly set forth in the Agreement, all of the rights and remedies of the Parties hereunder (whether evidenced hereby or by any other agreement, instrument or document or permitted by law) shall be cumulative but may be exercised singularly or concurrently.
    11. Survival. Notwithstanding anything herein to the contrary, all terms logically construed to survive the term of the Agreement shall survive.
    12. Assignment. Either Party shall have the right to assign all rights and liabilities hereunder to any person or entity that: (a) is an Affiliate of the assigning Party; (b) acquires all or substantially all of the assigning Party’s operating assets; or (b) results from a merger or reorganization pursuant to any plan of merger or reorganization. Any other assignments by either Party, in whole or part, shall require the prior written consent of the other Party without which such assignments are null and void. The Agreement shall inure to the benefit of and be binding upon the Parties and each Party’s respective successors, permitted assigns and legal representatives.
    13. Counterparts. This MSA may be executed in multiple counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. An electronic copy of this MSA or any signature hereon, including any digital signature, will be deemed an original and may be filed or received in evidence in any matter and for any purpose.

ID-BASED PRODUCTS

Exhibit A

The following additional terms shall apply to the provision by Epsilon of Services that involve the use of Epsilon’s CORE Identity (as defined herein) (any such Service, an “ID-Based Product”), including but not limited to its proprietary PeopleCloud Digital Media Solutions, Prospect, and Discovery Solutions. The CORE ID Services listed in Schedule 2 to the DPA are ID-Based Products.

1. Definitions.
   1. “Connect” means the separate data environment within Epsilon that renders Customer Data pseudonymous.
   2. "Cookie" means parcels of text sent by a server to a browser and then sent back unchanged by the browser each time it accesses that server.
   3. "CORE Identity" means the pseudonymous identifier assigned to an individual and the Device Identifiers linked to that identifier.
   4. "CORE Profile" means the collection of attributes assigned to a CORE Identity related to an individual's preferences and characteristics derived solely from Epsilon's proprietary datasets and data licensed from third parties.
   5. "Customer Data" means certain information, including transaction information and Directly Identifiable Information, relating to Client's customers that is collected and transferred by Client to Connect as described herein.
   6. "Database" means the location in which Epsilon stores Pseudonymous Data.
   7. "Device Identifiers" means Cookies, mobile device identifiers, and similar identifiers that relate to a specific computer, browser, smartphone, tablet, or other electronic device.
   8. "Directly Identifiable Information" or "DII" means any information used, or intended to be used, to directly identify a particular individual, including name, address, telephone number, email address, financial account number, and government-issued identifier.
   9. "Pseudonymous Customer Data" means the non-directly identifiable Customer Data processed and transferred by Connect to the Database.
   10. "Pseudonymous Data" means (a) information collected by Epsilon relating to an individual's interactions with Client's website and mobile application, if enabled by Client, that is not Directly Identifiable Information and (b) Pseudonymous Customer Data.
   11. "Tag" means code (e.g., HTML) or a web beacon (e.g., pixel tag, clear GIF) (a) that requests the delivery of digital advertising or tracks a digital advertising impression or click, or (b) on a website that enables the collection of information about a person's interactions with that website.
2. Onboarding of Customer Data and Website Tagging. Client will work with Epsilon to facilitate the transfer of Customer Data to Connect via a secure file transfer protocol (SFTP) or another mutually agreed-upon commercially reasonable encryption measure. Client will not deliver: (i) credit card or other financial account information; (ii) Social Security Numbers; or (iii) driver’s license or state ID card numbers to Connect. Connect will convert the Customer Data to Pseudonymous Customer Data before supplying it to the Database. Pseudonymous Data will also be collected by utilizing a Cookie and/or Tag for the purpose of digital advertising. Client will facilitate the placing of Epsilon’s Tags on all agreed-upon pages of Client’s website(s). Client will ensure that no Directly Identifiable Information can be collected through the Tags. Epsilon will use the Pseudonymous Data for the Services specified in each SOW. Epsilon will not share, provide, or otherwise disclose any Pseudonymous Data with or to any third party, nor will Pseudonymous Data be used to contribute to, enhance, create, or affect the CORE Profile in any way. The Pseudonymous Data may enable Epsilon to add or confirm Device Identifiers to the CORE Identity (without identifying Client as the source of any Device Identifier).
3. Additional Representations and Warranties. In addition to the representations and warranties in Section 6 of the MSA, for all ID-Based Products used by Client, Client represents and warrants that:
   1. it will honor the user's opt-out choice (e.g., by not passing a device's IDFA or similar application advertising identifier to Epsilon if the user has turned on limit ad tracking) whenever Epsilon has a direct integration with Client's mobile application; and
   2. it will not attempt to match any data contained in reports, analytics, data feeds, or any other information received from Epsilon, including without limitation any pseudonymous identifiers, with any directly identifiable information by any means whatsoever, and will contractually prohibit any third party with which it shares any such data from attempting to match any such data with any Directly Identifiable Information by any means whatsoever.

NAME-BASED PRODUCTS

Exhibit B

The following additional terms shall apply to the provision by Epsilon of hosted Solutions to which Client will onboard directly identifiable Personal Information, including but not limited to its proprietary PeopleCloud Customer, Loyalty, and Messaging Solutions.

1. Access by Affiliates and Partners. Client may authorize its Affiliates, contractors, consultants, agents, advisors and other business partners (each, a “Third-Party User”) to access and use Client’s Solution. Client agrees that it will ensure that any such Third-Party Users access and use the Solution solely for the purposes of providing services to Client, and that any Third-Party User is subject to a written agreement containing confidentiality provisions equally as restrictive as the provisions of the Agreement regarding the confidentiality and use of Epsilon’s intellectual property and Confidential Information. Client will notify Epsilon prior to granting access to the Solution to any Third-Party User that is competitive with Epsilon; Epsilon shall have the right to restrict the access by any such Third-Party User as deemed reasonably necessary by Epsilon to maintain the confidentiality and proprietary nature of the Solution. Client understands and agrees that such access may allow the Third-Party User to have access to Client data, content and other Client information within the Solution, to deploy live events or to make changes to the Solution or data, with access granted as directed or authorized by Client. Client agrees to ensure that such Third-Party User uses the Solution in accordance with the terms and conditions of the Agreement; Client shall be responsible for any violation thereof by any Third-Party User. Third-Party Users are specifically not a third party beneficiary to the Agreement and shall have no rights to enforce the Agreement nor shall Third-Party Users be considered a third party claimant for purposes of Epsilon’s indemnification obligations in the Agreement.
2. Third-Party Software. Certain Solutions include software that is licensed by third parties (“Third-Party Software”). Such Third-Party Software will be licensed by Epsilon for use by Epsilon and/or Client as part of the Solution. In such case the Third-Party Software license is: (a) obtained for the term and volumes indicated in the SOW and additional volumes will require additional license fees; (b) non-transferable and will continue solely for the term of the SOW; and (c) a non-cancellable cost that must be paid in full by Client in the event the SOW is terminated early. Alternatively, Client may elect to procure such Third-Party Software. In such case Client agrees that it will maintain a license that permits use of the Third-Party Software by Epsilon as necessary to provide the Services, and with sufficient license volumes as necessary to facilitate Client’s data and deployments, as applicable. Client will facilitate Epsilon’s contact with the manufacturer to obtain support as necessary.
3. Client’s Third-Party Data Arrangements. Where Client requests that Epsilon, in its role as Client’s service provider and/or processor, receive third party data on behalf of Client, Epsilon will reasonably cooperate with and enter into a limited agreement with such third-party data provider regarding Epsilon’s receipt of such data. Epsilon shall not be required to enter into any agreement that includes liability in excess of the requirements and limitations set forth herein, and Client will provide reasonable assistance in finalizing such agreements accordingly. To the extent any third-party contract requires agreement by Epsilon to liability exceeding the terms of the Agreement, Client agrees that it shall be responsible, and will indemnify Epsilon for, any such excess liability to the third-party data provider.