Epsilon Legal

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.

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

Definitions.
1. Affiliate(s) means any entity that directly or indirectly controls, is controlled by, or is under common control with the applicable Party, where control means direct or indirect ownership of more than 50% of the voting interests of the applicable Party.
2. Agreement means this MSA, all SOWs, Insertion Orders, and any other schedules, exhibits, and addenda incorporated therein, including any Data Protection Addendum.
3. Authorized User means each of Clients employees and its Affiliates, contractors, consultants, agents, and advisors that Client has authorized to use a Solution in accordance with the terms herein.
4. 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 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. 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 Partys Confidential Information, as demonstrated by documentary evidence.
5. 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.
6. CORE Identity means the pseudonymous identifier assigned to an individual and the cookies, mobile device identifiers, and similar identifiers that relate to a specific computer, browser, smartphone, tablet, or other electronic devices linked to that identifier.
7. CORE Profile means the collection of attributes assigned to a CORE Identity related to an individuals preferences and characteristics derived solely from Epsilons proprietary datasets and data licensed from third parties, including, without limitation, contextual, non-Directly Identifiable Data collected about individuals by Epsilon on websites and mobile applications owned by Epsilon and/or third parties.
8. Customer Data means certain information, including transaction information and Directly Identifiable Information, relating to Clients customers that is collected by or on behalf of Client and transferred to Epsilon as described herein.
9. 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.
10. Epsilon DII-Based Data means data and information generated, created, licensed, or collected by Epsilon, including all derivates thereof, that is or is attached to Directly Identifiable Information.
11. Epsilon Technology means the Solutions, all components thereof and pre-existing content incorporated therein, and 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.
12. First Party Cookie(s) means a Cookie that is created and managed by the Clients website domain that is available only to the Clients domain and cannot be accessed on any third-party website.
13. Force Majeure Event means a cause or event beyond the reasonable control and without the fault of a Party, and may include, but is 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.
14. Insertion Order means a fully executed insertion order governed by this MSA that sets forth the details for a digital advertising campaign to be delivered by Epsilon, including flight dates, costs, and total budget.
15. Laws means all applicable 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.
16. Marketing Content means creative assets, imagery, and other marketing or informational content, including approved messages, offers, reviews, endorsements and/or testimonials, images, fonts, logos, and other elements that are created or disseminated in connection with the Services.
17. Platform Data includes: (1) Epsilon DII-Based Data, (2) Epsilons CORE Identity, and (3) Epsilons CORE Profile.
18. Pseudonymous Data means (a) information collected by Epsilon about the products, services, or other website content that an individual interacts with on Clients website and mobile application, if enabled by Client, that is not Directly Identifiable Information, and (b) pseudonymized Customer Data.
19. Services means Epsilons marketing products and services, including its proprietary PeopleCloud product suite and its Solutions, that are provided to Client pursuant to one or more SOWs or Insertion Orders.
20. Solution means hosted software as a service-based solutions.
21. SOW means a fully executed statement of work governed by this MSA that sets forth the Services to be provided and any additional Service-specific terms.
22. 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.
23. Transaction Taxes means sales, use, value added tax, goods and services tax, or other taxes of a similar nature.
24. Work Product means 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 identified in an SOW as work product.
Principles of Agreement.
1. MSA, SOWs, and Insertion Orders. This MSA sets forth the terms applicable to all Services. Epsilon will provide the Services as specified in one or more SOWs and/or Insertion Orders. In the event of a conflict or inconsistency between the terms of an SOW or an Insertion Order and this MSA, the terms set forth in the SOW or Insertion Order will in all cases control with respect to the Services provided pursuant to such SOW or Insertion Order.
2. Client Affiliates. A Client Affiliate may leverage the terms of this MSA by executing an SOW or Insertion Order pursuant to this MSA. Should a Client Affiliate enter an SOW or Insertion Order referencing this MSA as the governing document, such action shall constitute an adoption by the Client Affiliate of all the terms of this MSA for the purpose of the Services provided pursuant to such SOW or Insertion Order. Similarly, an Epsilon Affiliate may be named as a signatory to an SOW or Insertion Order. 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 or Insertion Order.
Services Terms.
1. Data Transfer and Website Tagging. For each of the Services provided pursuant to an SOW or Insertion Order that involve the transfer of Customer Data to Epsilon, Client will work with Epsilon to facilitate the transfer of its Customer Data via a secure file transfer protocol (SFTP) or another mutually agreed-upon commercially reasonable encryption measure. Epsilon will pseudonymize the Customer Data as necessary to provide the Services. Epsilon will also collect Pseudonymous Data by utilizing a Cookie and/or Tag. Client will facilitate the placing of Epsilons Tags on all agreed-upon pages of Clients website(s) and will ensure that no Directly Identifiable Information can be collected through the Tags. Further, unless specifically set forth in the applicable SOW, Client may onboard data originating from the United States only and may not provide to Epsilon or to any Solution (i) any credit card or other financial account information; (ii) Social Security Numbers; (iii) drivers license or state ID card numbers; or (iv) any data that is considered sensitive data (as defined by applicable privacy laws) for residents of any states that prohibit the use of sensitive data without prior affirmative consent. Without limiting the foregoing, Epsilon shall have the right to discontinue receipt of any data from Client that Epsilon determines, in its reasonable discretion, could cause irreparable damage to Epsilons reputation, is deemed contrary to accepted industry practice, regulatory practice and/or guidance, or may be in violation of applicable law, rule, regulation, or order.
2. Connection of Pseudonymous Data to CORE Identity and Restrictions on Epsilons Use of Customer Data and Pseudonymous Data. Epsilon will connect Pseudonymous Data to the CORE Identity and will use the connected Pseudonymous Data solely for the Services specified in each SOW and Insertion Order. Epsilon will not share, provide, or otherwise disclose any Customer Data or Pseudonymous Data with or to any third party, nor will Customer Data or Pseudonymous Data be used to contribute to, enhance, create, or affect the CORE Profile or the CORE Identity in any way; provided, however, that if Client has enabled the collection by Epsilon of Pseudonymous Data on Clients website via Clients First Party Cookies, then Epsilon may connect any such First Party Cookies to the CORE Identity, which First Party Cookies will not be accessible to or used by any other Epsilon client.
3. Platform Data. Certain Epsilon digital Solutions and Services are provided with and/or utilize Epsilons proprietary Platform Data set. All right, title and interest in and to the Platform Data will remain with Epsilon and its third-party licensors. Platform Data may not be modified, further developed or otherwise processed to create any derivative products or services. Where an SOW provides for Client access to any Platform Data, Clients use of such Platform Data is subject to the limitations set forth at https://legal.epsilon.com/us/Epsilon-Platform-Data.
4. Third-Party Data. For any third-party data made available by Epsilon and included in the Solution, Epsilon will provide the applicable license terms, including any restrictions on use, to Client from the third party. Client may upload any dataset licensed directly to the Client from a third party for use within a Solution, provided the license agreement by and between Client and third party contemplates such usage. In such instances, Client represents and warrants that: (i) Client has the right and appropriate license to transfer such data to the Solution for the uses permitted in the applicable SOW; and (ii) such third-party data shall not contain precise geolocation data.
5. Cloud Provider and Location of Epsilon Personnel. Data will be stored in the United States, including in infrastructure provided by one or more cloud providers. Cloud environments are contracted as a commercially available product and subject to standardized customer terms and conditions, and as such may be subject to cloud provider terms and conditions that will control in the event of a conflict with the terms and conditions in an SOW and/or this MSA. Epsilon may use its personnel located in any of its worldwide office locations, including in Canada, Argentina, and India, in its discretion to most efficiently and effectively provide, support, or supplement the Services. In providing such support functions, Epsilons offshore resources may have access to personal information. The security standards referenced in the Agreement shall apply to Epsilons offshore locations as well as Epsilons United States locations.
6. Digital Media. If Client desires Epsilon to serve digital advertising on behalf of Client, Client and Epsilon will execute one or more Insertion Orders for each digital advertising campaign.
7. Access to and Use of the Solutions. The following terms and conditions apply to any Solution hosted by Epsilon and made available to Client:
  1. Authorized Users. Client agrees that it will ensure that any Authorized Users access and use the Solution solely for the purpose of providing services to Client. Client must ensure that any Authorized User that is not an Affiliate or employee of Client is subject to a written agreement containing confidentiality provisions equally as restrictive as the provisions of the Agreement regarding the confidentiality and use of Epsilons intellectual property and Confidential Information. Client will notify Epsilon prior to granting access to the Solution to any non-Affiliate or non-employee Authorized User, and Epsilon shall have the right to restrict the access by any such Authorized User as deemed reasonably necessary by Epsilon to maintain the confidentiality and proprietary nature of the Solution. Authorized Users are specifically not third-party beneficiaries to the Agreement and shall have no rights to enforce the Agreement, nor shall Authorized Users be considered third party claimants for purposes of Epsilons indemnification obligations in the Agreement.
  2. Security and Access to Content. In accessing the Solution or integrating via API or otherwise, Client will ensure that it complies with any Epsilon required security and privacy safeguards, but not less than appropriate industry standard security. Solution credentials are for individual access only and may not be shared between more than one individual. Scanning, testing, or other assessments of the Solution are not permitted except with Epsilons prior written consent. In the event Client conducts end user or customer authentication outside of the Solution (including through the use of Single Sign On, Okta and similar technologies), Client shall employ no less than industry standard web server and multi-factor authentication to validate user credentials and prevent unauthorized access to the Solution. Epsilon will not be responsible for any unauthorized access obtained by users passed to the Solution by Clients authentication process. Client understands and agrees that Solution access may allow an Authorized User to have access to Client data, content, and other Client information within the Solution and to deploy live events or to make changes to the Solution or data. Client agrees to ensure that each Authorized User uses the Solution in accordance with the terms and conditions of the Agreement, and Client shall be responsible for any violation thereof by any Authorized User. Client will immediately notify Epsilon in the event it becomes aware of any unauthorized access or use of the Solution. Client shall not, and shall ensure that its Authorized Users shall not, provide, upload, access, store, distribute, or transmit any Unauthorized Code. Unauthorized Code means any virus, Trojan horse, worm, spyware, adware, or other code, script, or algorithm designed or used to interfere, damage, corrupt, disrupt, intercept, or expropriate any computer system, program, database, data, hardware, or communications system. In the event Unauthorized Code is detected, Epsilon may suspend Client access or take other necessary action to remediate the issue; Client agrees to undertake appropriate remediation to prevent any continued or future transmission of Unauthorized Code
  3. Messaging Solutions. For any Solution that enables Client to send messages (e.g. email or text), Client represents and warrants that its message deployment lists contain email addresses and/or phone numbers of individuals for whom Client has sufficient consent or permission to send messages, it being understood that for email lists procured through a third party and for messages deployed into certain countries, and for text messages, an affirmative action may be required for consent to be considered adequate. Client agrees that messages shall be sent solely within the scope of the consent and will not be sent by Client (i) unsolicited to unknown individuals in bulk, or (ii) to individuals who have opted out of receiving such messages or content or who have not expressly opted in to receive such messages, as applicable.
  4. Savings Clause. Epsilon shall not be responsible or liable for any disruption, unavailability, or other failure to the extent caused by: (i) Clients equipment, applications, failures of or interruptions to other components for which Client is responsible; (ii) acts of any third party and other causes to the extent they are beyond Epsilons reasonable control; (iii) changes or configurations made to the Solution or to Clients production environment by a party other than Epsilon, or any changes or configurations made using a specific instructed method or approach at the direction of Client and that are inconsistent with Epsilons recommended approach; (iv) Clients failure to perform its obligations under the SOW and related, agreed upon documentation to the extent such failure affects Epsilons ability to meet the applicable Service requirements; (v) Clients refusal to agree to a commercially reasonable change proposed by Epsilon where such change request is based on the Clients increased or different use of the Services or Solution, to the extent it impedes Epsilons ability to meet the service levels; or (vi) any outage, delay or traffic in public networking infrastructure or telecommunications provider.
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 or Insertion Orders are in effect at the time of termination, this MSA will continue in effect for the duration of the term of such SOWs or Insertion Orders.
2. Termination Without Cause. Clients rights to terminate an SOW or Insertion Order prior to its then current term without cause, if any, will be stated in each SOW or Insertion Order as agreed upon between the Parties. Any exercise of Clients no cause early termination rights is subject to the Clients 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 or Insertion Order. If no early termination for convenience term is identified in an SOW or Insertion Order, then the term of that SOW or Insertion Order shall be considered non-cancellable and a material consideration for the SOW or Insertion Order fees agreed upon therein.
3. Termination for Cause. If a Party breaches a material term of this MSA or any SOW or Insertion Order, the non-breaching Party may provide notice of such breach to the breaching Party that identifies the suspected breach with reasonable specificity. The 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 or Insertion Order for a Service-related breach of a material term of such SOW or Insertion Order, or (b) the MSA and all outstanding SOWs and Insertion Orders 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 and Insertion Orders shall include all fees and non-cancellable charges incurred through the effective date of termination of the applicable SOW or Insertion Order. Payment of the final invoice(s) shall not bar any remedy, legal or equitable, otherwise available to either Party.
Fees and Taxes.
1. Fees and Invoice Schedule. Client will pay to Epsilon the fees and other charges enumerated in the applicable SOW(s) and Insertion Order(s), as may be amended from time to time. The SOW or Insertion Order will indicate when Epsilon will invoice for the Services. Should the SOW or Insertion Order 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 within thirty (30) days of notification of dispute, escalating to appropriate personnel as needed. 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 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 or Insertion Order, Client shall notify Epsilon of its intention to withhold on any payment under such SOW or Insertion Order 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 or Insertion Order executed under the Agreement should be executed between the Client Affiliate and Epsilon Affiliate located within the same country. If local to local invoicing and payment are 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 Clients request. Upon Clients 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.
Confidential Information.
1. Safeguards. Each Party shall hold the other Partys 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 Partys 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.
2. 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 rule or regulation of a government authority to which the receiving Party is subject, 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. The receiving Party will reasonably cooperate, at the disclosing Partys expense, to assist the disclosing Party in seeking such protective order or other appropriate remedy.
3. 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 or Insertion Order, (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.
4. Return or Destruction. Upon termination or expiration of the applicable SOW, each Party shall securely delete all originals and copies of the other Partys 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, or return such Confidential Information to the other Party, except for any copies that are retained on archived backup tapes pursuant to the Partys internal policies.
Data Protection and Privacy. In the event the Services involve the receipt of Personal Data (as defined by applicable Law), the Parties agree to comply with the terms and conditions of the Data Processing Addendum located at https://legal.epsilon.com/us/data-processing-addendum, which are fully incorporated herein.
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 Laws. If new Laws or material changes to Laws passed after the Effective Date 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.
Marketing Content.
1. In connection with the Services, Client agrees that it may be required to provide Marketing Content to Epsilon, either directly or through designated partners. Client represents and warrants that Client will fulfill all firm commitments made in its Marketing Content and that all such Marketing Content: (a) will include only accurate, complete and appropriate information concerning Clients organization, products, and services or those of its competitors; (b) include any and all required labelling, product information, disclaimers, warnings, privacy notices, and other legal copy as required by 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; (d) will not contain or promote obscene, abusive, violent, bigoted, or hate-oriented content or conduct or otherwise encourage or promote the same; and (e) will not be fraudulent or deceptive as defined by Law. Client remains responsible for all final legal reviews, approvals and clearance for any Marketing Content.
2. Client agrees that it will adhere to the creative guidelines located at https://legal.epsilon.com/us/creative-guidelines for all Marketing Content delivered to audiences created in a Solution or with the Services. Epsilon may modify the creative guidelines at any time in its sole discretion by providing written notice to Client with the revised guidelines. Epsilon reserves the right to refuse to allow its data to be used in connection with any Marketing Content it reasonably determines does not meet applicable standards.
Intellectual Property.
1. Work Product. Upon payment by Client of the fees set forth in an SOW, any Work Product resulting from such SOW shall become the property of Client. In no event, however, will the Work Product include any Epsilon Technology or data provided by Epsilon to Client.
2. Epsilon Technology. Client acknowledges that Epsilon will retain all right, title, and interest in and to Epsilon Technology. Epsilon Technology is considered Epsilons Confidential Information.
3. Epsilon DII-Based Data. Epsilon DII-Based Data is Epsilon Confidential Information and will at all times remain the property of Epsilon or its third-party licensor(s). Epsilon DII-Based Data shall: (i) be subject to data license terms as specified in the applicable SOW; and (ii) not be used in any artificial intelligence platform or any product or service using language learning models, unless such platform, product, or service is built, managed, hosted, and only used by Client for its own marketing purposes.
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 general skills, ideas, methodologies, concepts, know-how, and expertise are of generic applicability and are acquired and applied without disclosure of any Confidential Information or proprietary information of the other Party.
6. Third-Party IP Claims Against Epsilon. In the event of a third-party claim against either Epsilons intellectual property or right to offer any good or service, or if, in Epsilons opinion, such a claim is likely, Epsilon shall have the right, in its sole discretion and as Clients 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.
Limitations on Liability and Disclaimer of Warranties.
1. EXCEPT FOR EACH PARTYS INDEMNIFICATION OBLIGATIONS IN SECTION 12.1(a) AND 12.1(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 PARTYS INDEMNIFICATION OBLIGATIONS IN SECTION 12.1(a) AND 12.1(c), EACH PARTYS MAXIMUM AGGREGATE LIABILITY WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR AGREED TO BE PAID TO EPSILON UNDER THE APPLICABLE SOW OR INSERTION ORDER 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.
2. 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.
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, claims actions, causes of action, lawsuits, 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 Partys breach of its representations or warranties in the MSA and any SOWs and Insertion Orders; (b) the indemnifying Partys breach of its data protection and privacy obligations under the Data Processing Addendum; and (c) with respect to Clients indemnification obligation, Clients marketing or advertising of Clients 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.
Insurance. Each party 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 the other Party.
2. Excess Liability: $5,000,000 per occurrence, $5,000,000 aggregate. This policy will be in excess of the Commercial General Liability and Employers 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 the other Party.
3. Workers Compensation and Employers Liability: The statutory amount for the state(s) in which Services are to be rendered and received hereunder and a policy of Employers 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).
Miscellaneous
1. No Federal Subcontracting. Client shall immediately notify Epsilon in writing should it have reason to believe that any Services Epsilon provides or will provide to Client are in support of a Client obligation to a federal government entity that may reasonably deem Epsilon a federal subcontractor.
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, case study, or similar materials with Epsilon regarding the Services provided hereunder. In connection with its request, Epsilon will provide Client a copy of the proposed press release, case study, or similar materials for Client review and approval.
3. Legal Notices. Any notices required or permitted pursuant to the MSA, an SOW, or an Insertion Order shall be in writing and addressed to the relevant Party at its address below or as set forth in an SOW or Insertion Order (if the SOW or Insertion Order specifies a different notice address and such notice is related to the SOW or Insertion Order) by overnight, second day, or certified mail, and will be deemed received upon actual receipt. Any required notice shall also be sent concurrently to the email address set forth below. 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. If to Epsilon, to: Epsilon Data Management, LLC, Attn: Legal Department/Urgent, 6021 Connection Drive, Irving, TX 75039, with a copy to LegalNotices@epsilon.com. If to Client: to the address specified in the applicable SOW.
4. Force Majeure. Except for Clients 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 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. If any provision of this Agreement is deemed invalid or unenforceable, except for a provision essential to the Agreements core purpose, the remaining provisions shall remain in full force and effect. The Agreement will be enforced to the fullest 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 filing a lawsuit in New York, Delaware, Texas, or Illinois, and the other Party shall consent to such venue and exclusive jurisdiction in the selected state. 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 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 Partys operating assets; or (c) 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 Partys respective successors and permitted assigns.
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.