Last updated: July 31, 2026 (View historical copy)
These terms of service (“Terms of Service”), dated as of ____ (the “Effective Date”), are entered into between [BRAND NAME] (“Brand”) and PebblePost, Inc. (“PebblePost”). PebblePost and Brand may be referred to herein collectively as the “Parties” or individually as a “Party.” These Terms of Service, together with any and all Statements of Work (“SOWs”) entered into between the Parties, may be referred to herein as the “Agreement.”
DEFINITIONS
Agreement – These Terms of Service, any SOWs or IOs, executed between the Parties, and any mutually executed Amendments or Addenda that the Parties may subsequently enter.
Brand – The advertiser or marketer engaging PebblePost’s Services.
Brand-Anonymized Data – Data derived from Brand Data, Event Data, Independent Information, or the PebblePost Graph that does not identify Brand and is not reasonably capable of being associated with Brand.
Brand Data – A Brand’s Customer Relationship Management File (CRM File), provided to PebblePost as a necessary part of the Services to Brand, to enable accurate targeting of consumers, suppression of specified consumers, or other Services specified in an SOW. Brand Data may include a CRM File, a Do Not Mail File, a Deletion File, or a Transaction File, which may include consumer addresses, email, phone, and related transaction data. Brand Data is included in PebblePost’s Graph in pseudonymized form, as an essential part of the Services, provided that any Do Not Mail File, Deletion File, or other suppression or opt-out data is used by PebblePost for suppression, opt-out honoring, and compliance purposes, is not used to construct targeting audiences or as a training feature in PebblePost’s models, does not constitute Derivative Data or Brand-Anonymized Data, and is not otherwise Commercialized by PebblePost.
Brand Marks or Intellectual Property – Brand’s trademarks, service marks, trade names, logos or slogans included in the Brand Materials. Brand retains full ownership and rights in its Brand Marks.
Brand Materials – All necessary advertising, marketing materials, program names, designs, graphics, drawings, Brand’s intellectual property marks and other content that Brand licenses to PebblePost in order for PebblePost to provide the Services to Brand. Brand retains full ownership and rights in its Brand Materials.
Commercialize (and “Commercialization”) – To use, disclose, license, sublicense, transfer, sell, share, syndicate, or otherwise make available, in whole or in part, alone or combined with other data, for consideration or otherwise.
Confidential Information – Defined herein.
CTV – The connected television service line of the Services, through which PebblePost reaches households via connected TV platforms, as more fully detailed in an SOW.
Deletion File – A file provided by Brand identifying consumers who have requested deletion of their personal information.
Derivative Data – Data, models, scores, segments, propensities, identity resolutions, or other outputs generated by PebblePost through the application of PebblePost’s proprietary methodologies, algorithms, matching, cleansing, enrichment, or machine learning processes to Brand Data, Event Data, and Independent Information within the PebblePost Graph. Derivative Data does not consist of Raw Brand Data, and no Derivative Data will identify, or be presented in a manner that identifies, any Brand as a source of the underlying data. For the avoidance of doubt, Derivative Data may relate to identifiable consumers and households, including by means of identity resolution, and may include data elements common to or derived from Brand Data, Event Data, or Independent Information.
Event Data – Online data collected via PebblePost’s JavaScript Tag on a Brand’s website (with Brand’s notice to Consumers as required by law). The Event Data is necessary for targeting and qualification of Brand’s marketing prospects, and for deriving insights into online users’ interests and propensity to convert, to inform PebblePost’s optimization algorithm. Event Data may include a website user’s IP address, device, browser data, other identifiers, and page URLs visited.
Independent Information – PebblePost sourced information, which is provided to, collected, used by, or is otherwise in the possession of PebblePost as a result of its independent access, collection, data normalization and verification services or its Service Provider relationships. Independent Information may be duplicative of Brand or Event Data.
Mail Pieces – The physical mail formats (e.g., postcards) that are used for mailing Brand’s target audience(s).
PebblePost Graph – PebblePost’s proprietary data asset that connects billions of shared first-party identity, intent, and transaction signals across a multitude of participating brand partners and $100B in annual transactions, to nearly 100% of US residential postal addresses, leveraging additional enrichment sources to improve scale and fidelity. This data helps brands determine consumer interest, how to engage them, and what they purchase. It fuels PebblePost’s platform’s ability to identify and engage decision-ready consumers and to match online and offline transactions back to exposed and control groups for performance and conversion rate lift measurement.
PebblePost Data – PebblePost Data includes (i) data owned or independently licensed by PebblePost and made available through the PebblePost Platform, (ii) Independent Information obtained or collected by PebblePost and included in the PebblePost Graph, including any data obtained from third parties while providing the Services, (iii) Event Data collected by PebblePost from consumers through its JavaScript Tag, and (iv) Derivative Data.
PebblePost Intellectual Property – Described herein.
PebblePost JavaScript Tag – PebblePost’s code that is integrated into Brand’s website to collect Event Data to enable receipt of the Services. PebblePost’s Implementation Guide provides all required information and is provided to Brand prior to data onboarding.
PebblePost Platform – PebblePost’s marketing technology platform, including the data thereon, for use as part of the Services.
PebblePost Privacy Policy – PebblePost’s policy is updated at least annually to comply with all applicable laws and includes information for Brands, and direct B2B consumers, regarding PebblePost’s policies and B2B consumers’ data rights. See: https://www.pebblepost.com/privacy-policy/
PDM Services – The Programmatic Direct Mail service line of the Services, through which PebblePost qualifies, ranks, targets, and mails Brand’s target audience(s), and measures resulting performance, as further described in an applicable SOW.
Personal Information (or Personally Identifiable Information or PII) – Information about a consumer or household that may be reasonably used to identify an individual, device, or household.
Prohibited Data – Any of the following, which Brand shall not provide, transmit, or make available to PebblePost in connection with the Services: (i) personal information of individuals under the age of eighteen; (ii) Social Security numbers, driver’s license or other government-issued identification numbers; (iii) precise geolocation data; (iv) biometric identifiers; (v) protected health information under HIPAA, or non-consented “consumer health data” as defined under applicable state consumer health data laws; (vi) financial account, credit or debit card numbers, or data governed by the Fair Credit Reporting Act, the Equal Credit Opportunity Act, or the Gramm-Leach-Bliley Act; (vii) “sensitive data” or “sensitive personal information” as defined under applicable state privacy laws; and (viii) any video viewing or rental history data subject to the Video Privacy Protection Act, except as expressly permitted in an SOW governing CTV Services and subject to Brand’s compliance with Section 6(c)(vi). Any video viewing or rental history data permitted under clause (viii) is used solely to provide the CTV Services to the Brand that supplied such data, is excluded from the PebblePost Graph in any form that retains title-level viewing detail, and is not included in any Derivative Data or Brand-Anonymized Data Commercialized under Section 2(d).
Pseudonymized Data – Data in which direct identifiers have been replaced with tokens or other placeholder values, with the ability to re-associate such data with an identified individual retained by PebblePost under access controls and used only for the purposes set forth in this Agreement.
Raw Brand Data – Brand’s CRM Files and any data it provides that is not aggregated, pseudonymized, hashed, or otherwise in cryptographic form (as these terms are widely understood in the advertising industry), and that includes PII about Brand’s consumers. Raw Brand Data is accessed only to send mail pieces, or for campaign analytics and debugging, and solely on behalf of the Brand providing such Data. Raw Brand Data is proactively deleted as soon as reasonably possible after completion of campaign analytics and diagnostics.
Services – The marketing, advertising, measurement, and related services that PebblePost provides to Brand utilizing the PebblePost Platform and PebblePost Graph, including PDM Services, CTV, and such other service lines as PebblePost may make available from time to time, each as further described in an applicable SOW.
Statement of Work (or SOW, or Insertion Order) – A mutually executed document that describes one or more Service’s terms, including details of the Services to be provided, pricing and dates of Services.
Service Provider(s) – The vendors that PebblePost contractually engages to provide Services, solely on behalf of PebblePost and Brand.
Third Party – PebblePost’s legal relationship to Brand as a marketing partner, as this term is used under US state privacy regulations.
Transaction File / Transaction Match – As part of its Services to Brands, PebblePost evaluates sales performance, or conversion data, after completion of a campaign (“Transaction Match”). In order to complete Transaction Match Services, Brand provides a file to PebblePost, which includes a list of those consumers (within the set of Brand Data and Event Data) who have transacted or purchased across all of a Brand’s channels (“Transaction File”). The Transaction File typically includes names, emails, phone numbers, addresses, and information related to those purchases. The Transaction File constitutes Brand Data and is subject to the license, Graph inclusion, and Derivative Data provisions set forth in Sections 1 and 2, in addition to its use for Transaction Match.
User ID – Use of the PebblePost Platform requires the creation and use of a user identity and password (collectively, “User ID”) for each individual accessing the PebblePost Platform.
1. Services & Licenses
PebblePost provides Services that utilize the PebblePost Graph, as well as access to the PebblePost Platform to manage these Services. PebblePost will provide the Services to Brand as set forth in written SOWs, and in accordance with these Terms of Service.
a. Brand Licenses to PebblePost
License to Brand Materials
(a) Brand shall provide PebblePost with Brand Materials that will form the basis of the Mail Pieces. Brand hereby grants PebblePost a limited, worldwide, non-exclusive, royalty-free, non-sublicensable (except to PebblePost’s Service Providers as necessary to provide the Services to Brand in accordance with this Agreement) right and license to copy, modify, enhance, distribute, reproduce, adapt, publicly display, create derivative works of and otherwise use the Brand Materials solely in order to provide the applicable Services to Brand.
(b) Brand shall retain full right, title and ownership to its Materials.
(c) Use of Brand Name. Brand grants PebblePost a limited, non-exclusive, royalty-free license to use Brand’s name and logo to identify Brand as a PebblePost client in PebblePost’s marketing materials, website, and sales presentations, subject to any trademark usage guidelines Brand provides. This license does not permit disclosure of Confidential Information or the terms of this Agreement, and may be revoked by Brand upon written notice, with PebblePost removing such use within a commercially reasonable time thereafter.
b. Permissible Use of PebblePost’s Platform, Data and Brand Controls
(a) A User ID shall only be used by the individual to whom it is assigned and may not be shared or transferred. A separate User ID must be created for each individual accessing the PebblePost Platform. Brand is solely liable for all use of the PebblePost Platform accessed through a User ID associated with Brand. Any unauthorized use of a User ID or password should be immediately reported by Brand to PebblePost. Brand is responsible for disabling any User ID assigned to an individual who is no longer employed by Brand or is no longer authorized to access the PebblePost Platform on behalf of Brand.
(b) Brand shall not use the Services for the promotion or advertisement of any illegal or illicit products or services or promoting unlawful activities, including pornography, illegal drugs, or illegal weapons; or that is defamatory or infringes, misappropriates or violates the intellectual property rights or privacy rights of any third party or is otherwise unlawful; or would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law. Brand may not use PebblePost Data as a factor in establishing an individual’s creditworthiness or eligibility for credit, insurance or employment. Brand shall not provide or make available to PebblePost, and PebblePost shall not be obligated to accept, any Prohibited Data.
(c) Brand shall not permit any third party to access the PebblePost Platform, or otherwise Commercialize any PebblePost Data.
(d) Brand shall not create derivative works from the PebblePost Platform, or otherwise reverse engineer or access the PebblePost Platform in order to (1) build a competitive product or service, (2) develop a product or service using similar ideas, features, functions or graphics of the PebblePost Platform, or (3) copy any data, ideas, information, features, functions, or graphics of the PebblePost Platform.
(e) In any use of the Services, Brand must honor all applicable consumer data privacy elections required by US State privacy regulations, including but not limited to consumers’ elections not to sell or share their data, not to receive marketing solicitations from or on behalf of Brand, consumers’ right to know what data Brand shares, or has access to about consumers, and consumers’ right to have their data deleted, as may be required by applicable US state privacy laws. Brand is responsible for responding to any communication initiated by a consumer arising out of Brand’s use of the Services, and where applicable, disclosing this information to PebblePost by providing a list of consumers as a “Do Not Mail” File or a Deletion File. Unless disclosure is required by law, upon receipt of an express request from a consumer for the source of consumer’s personal information used in a marketing solicitation, Brand must obtain written confirmation from PebblePost that it was in actuality the source of such information prior to referencing PebblePost as the source. Brand shall be solely responsible for ensuring that it provides PebblePost with regular, up-to-date suppression lists of consumers who have elected not to have their data sold or shared, as well as those who have opted out of receiving direct mail or any advertising from Brand, and that any legally required suppression processing has been applied to such lists.
(f) Brand will comply with all technical requirements for use of the Services communicated by PebblePost to Brand, which may include (i) placing tags, pixels, script, or code supplied by PebblePost on Brand’s website and/or (ii) supplying appropriate Brand Materials or Brand Data necessary for PebblePost to provide the applicable Services. Brand acknowledges that absent such compliance, PebblePost may be unable to provide the Services.
PebblePost’s License to Brand
c. License to PebblePost Data (PebblePost Platform & JavaScript Tag). PebblePost hereby grants to Brand, during the Term (defined below), a worldwide, non-exclusive, non-transferable, non-sublicensable (except to Brand’s Service Providers bound by written obligations to comply with these Terms of Service), limited right and license to use the PebblePost Platform and the PebblePost Data for Brand’s internal business purposes, and to integrate the PebblePost JavaScript Tag into Brand’s website. Unless otherwise explicitly set forth in an SOW, (1) Brand may use the PebblePost Platform solely for analysis purposes, (2) Brand may not disclose any PebblePost Data to third parties without the prior written consent of PebblePost; and (3) Brand must properly notify, disclose and offer an opt out to consumers whose Event Data is collected via the PebblePost JavaScript Tag, as may be required by applicable laws.
d. PebblePost’s Rights in its Intellectual Property. PebblePost or its applicable partners own all right, title and interest (including all intellectual property rights) in and to: (i) the Services and all aspects thereof, including the underlying source code, all copies, derivative works, output, modifications, translations and merged portions thereof, any and all PebblePost trademarks, service marks, trade names, logos or slogans contained within or associated with the Services, and the PebblePost Platform (and all its features, tools, and technologies and any updates, upgrades, and improvements thereto, and any new version or successor thereto); (ii) the PebblePost Graph, including its structure, linkages, and enhancements, and all pseudonymized records therein (excluding Brand’s ownership of Brand Data in the form originally provided to PebblePost, as to which PebblePost holds the license set forth in Section 2(a)), and all Derivative Data generated therefrom; (iii) Independent Information; (iv) any PebblePost-proprietary software programs; (v) all data models, data processing systems or mechanisms, partner information, trade secrets, know-how and/or processes of PebblePost which PebblePost may utilize in connection with the Services; (vi) any and all PebblePost Data, including PebblePost products, documentation or other written materials written, prepared, edited or disclosed by PebblePost, including any derivative works, improvements, feedback; (vii) modifications to any of the foregoing, any data, metrics, attributions, propensities and other content created through the use of any of the foregoing by PebblePost; and (viii) all intellectual property rights related to any of the foregoing (collectively the “PebblePost Intellectual Property”). Brand’s use of the Services or PebblePost Intellectual Property shall not create in Brand or any other person, any right, title or interest in or to the PebblePost Intellectual Property. All rights in PebblePost Intellectual Property not expressly granted hereunder are expressly reserved to PebblePost and its applicable partners. PebblePost’s ownership of the PebblePost Graph, Independent Information, Derivative Data, and Brand-Anonymized Data survives termination of this Agreement and may be transferred, licensed, assigned, or conveyed by PebblePost for any lawful business purpose, including by way of data licensing or sale to third parties, and including in connection with a merger, acquisition, financing, or sale of all or substantially all of PebblePost’s assets, in each case without restriction and without obligation to Brand.
e. Brand Intellectual Property. As between PebblePost and Brand, and without limiting PebblePost’s rights to incorporate pseudonymized Brand Data in PebblePost’s Graph, Brand shall own all intellectual property rights in and to all Brand Material, Brand Data, and Brand-related data generated by Brand’s use of the Services (collectively, “Brand Intellectual Property”). All rights in Brand Intellectual Property not expressly granted hereunder are expressly reserved to Brand.
2. License to Brand Data & Participation in PebblePost Graph
In order to enable PebblePost to perform the Services, Brand will provide Brand Data to PebblePost as set forth below.
(a) Brand hereby grants to PebblePost a worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to use Brand Data (i) to provide the Services to Brand; (ii) to include such Brand Data in the PebblePost Graph in pseudonymized form; and (iii) to process, analyze, match, enrich, and otherwise use such Brand Data to develop, train, and improve PebblePost’s models, algorithms, and the PebblePost Graph, and to generate Derivative Data, and for such other purposes as PebblePost may determine, as further described in Section 2(d). PebblePost will include and maintain the Brand Data in the PebblePost Graph in accordance with PebblePost’s Data and Privacy Representations set forth in Section 3. The license in clauses (ii) and (iii) is perpetual and irrevocable with respect to Brand Data incorporated into the PebblePost Graph prior to expiration or termination, and survives any expiration or termination of this Agreement. For the sake of clarity, including Brand and Event Data in PebblePost’s Graph, in pseudonymized form, is necessary to provide and access the Services.
(b) In the event that Brand Data is duplicative of Independent Information, PebblePost reserves its rights in and to such Independent Information, without diminishing Brand’s rights in its own Brand Data.
(c) Brand acknowledges that Brand Data, once incorporated into the PebblePost Graph, is processed, transformed, matched, scored, and enriched by PebblePost’s proprietary methodologies to generate Derivative Data. Derivative Data is owned exclusively by PebblePost. Nothing in this Section diminishes Brand’s ownership of its own Brand Data in the form originally provided to PebblePost, or PebblePost’s obligations with respect to Raw Brand Data as set forth in Section 3.
(d) Reserved Rights. As between the Parties, PebblePost retains all right, title and interest in and to the PebblePost Graph, PebblePost Data, Independent Information, Derivative Data, and Brand-Anonymized Data, and may Commercialize such assets for any lawful business purpose, without obligation, accounting, or compensation to Brand, subject only to the Brand Data definition’s limitation on suppression and opt-out data, the limitations on video viewing data set forth in the definition of Prohibited Data, and PebblePost’s obligations with respect to Raw Brand Data set forth in Section 3. Brand has no right to any royalty, revenue share, or accounting in respect of PebblePost’s use or Commercialization of the foregoing. This Section 2(d) survives any expiration or termination of this Agreement.
(e) Privacy Roles. The Parties acknowledge and agree that, with respect to Brand Data and Event Data, PebblePost acts as a Third Party, and not as a service provider, contractor, or processor, as those terms are defined under applicable US state privacy laws, and that PebblePost processes such data for its own business purposes described in this Agreement in addition to providing the Services.
3. PebblePost Data & Privacy Representations
PebblePost employs commercially reasonable, industry-standard privacy controls designed to comply, in all material respects, with applicable US state privacy laws, and respective Agreements between the Parties. PebblePost’s privacy controls include the following protocols, as well as those set forth in the Warranties & Security Section herein:
(a) PebblePost does not knowingly collect personal information from outside the United States. Brand represents and warrants that it will not knowingly provide PebblePost with personal information of individuals located outside the United States. PebblePost reserves the right to reject, suspend, or delete any data it reasonably believes originated from outside the United States, without liability to Brand.
(b) PebblePost does not share Raw Brand Data with other Brands, including any Brand’s identity as a participant in the PebblePost Graph, or the consumers’ PII contained therein. This Section 3(b) does not restrict PebblePost’s Commercialization of Derivative Data, Independent Information, or other PebblePost Data as set forth in Section 2(d);
(c) Brand Data and Event Data is maintained in pseudonymized form in the PebblePost Graph. PebblePost re-identifies such data (i) on Brand’s behalf for purposes of campaign activation and analytics, and (ii) for PebblePost’s own business purposes as permitted under this Agreement, subject in each case to Section 3(b). PebblePost does not disclose to any third party the identity of any Brand as a source of re-identified data;
(d) PebblePost maintains policies and technical controls reasonably designed to prevent any single Brand’s Data from being used to target that Brand’s identified customers on behalf of a competitor of that Brand, including:
(i) The scale of the data in the PebblePost Graph, which reaches nearly all US residential postal addresses, and includes transaction and CRM data contributed by 500+ participating brands, means no Brand, no matter how large or specialized, makes up a majority portion of any data set; and
(ii) PebblePost applies contribution controls designed to prevent any single Brand’s Data from disproportionately determining the composition of any target audience or model output, and no Brand’s Data is used in a manner that discloses that Brand’s customer list or participation in the Graph to any other Brand. Brand acknowledges that the PebblePost Graph is a shared, cross-brand data asset, and that this Section 3(d) does not restrict PebblePost from including any consumer in an audience solely because that consumer has transacted with Brand.
(e) Raw Brand Data containing consumers’ PII is held in a secure, encrypted repository, segregated from PebblePost’s production Graph environment, and: (i) encryption keys are rotated in accordance with industry security standards; (ii) Raw Brand files are not used or accessed on behalf of other Brands; and (iii) Raw Brand PII is deleted no later than one hundred eighty (180) days following completion of the applicable campaign, including analytics and debugging. For the avoidance of doubt, this Section 3(e) applies solely to Raw Brand Data and does not require deletion or degradation of pseudonymized records within the PebblePost Graph, Derivative Data, or Independent Information;
(f) PebblePost is registered as a data broker in each state in which such registration is required, currently including California, Texas, Vermont, and Oregon, and will register in any additional state in which registration becomes required. PebblePost’s rights to Commercialize Independent Information, Derivative Data, and Brand-Anonymized Data are set forth in Section 2(d). PebblePost does not sell, share, rent, license, transfer, syndicate, or otherwise make Raw Brand Data available to any third party, and does not disclose any Brand’s identity in connection with any data sold, shared, licensed, or otherwise made available to third parties. PebblePost engages limited and select Service Providers who have passed industry security standards, and any Brand Data or Event Data transferred to Service Providers may not be used for any purpose beyond the Services.
(g) PebblePost provides a Secure File Transfer Protocol (SFTP) folder for each Brand to submit ongoing consumer privacy requests. PebblePost’s obligations with respect to such requests are prospective and apply to PebblePost’s own systems; PebblePost has no obligation to retrieve, recall, or procure the deletion of data previously disclosed to a third party in accordance with Section 2(d), except as expressly required by applicable law;
(h) PebblePost will not accept PII from Brands or Service Providers that is not compliant with all applicable laws. As set forth in the Warranties, Brand represents that it provides consumers with notice, disclosure and an ability to opt out of the sale, share, or collection of their PII, where required by applicable laws;
(i) PebblePost is a member of the DAA;
(j) PebblePost completes annual SOC 2 Type 2 certifications and conducts annual penetration testing. PebblePost does not permit third-party audits of its systems, data, or security controls. Upon reasonable request, and where appropriate to Brand’s compliance obligations, PebblePost will provide Brand with its SOC 2 Type 2 attestation and/or penetration test results in lieu of an audit.
4. Fees, Billing and Payment
a. PebblePost shall bill Brand in accordance with the Services and terms set forth in an SOW. All fees are due and payable in U.S. Dollars and are non-refundable.
b. The Parties agree that in the event of a dispute over fees or invoices, any out-of-pocket costs that PebblePost incurs, including but not limited to payment of printing and postage, will be guaranteed and paid by Brand notwithstanding a dispute about other fees or invoiced amounts and notwithstanding a cancellation in Services.
c. Brand will pay all applicable federal, state and local sales, use, value added, excise, duty and any other taxes of any nature assessed on the Services, except for taxes based on PebblePost’s revenue or income.
5. Term and Termination
a. Term. The term of this Agreement begins on the Effective Date and continues until terminated by either Party in accordance with this Agreement (“Term”). The term of each SOW will be as set forth therein.
b. Suspension and Termination for Cause. In the event of any breach of this Agreement by Brand (including non-payment of fees), without limiting PebblePost’s other rights and remedies, PebblePost may immediately suspend the Services and restrict Brand’s access to the PebblePost Platform, in which case PebblePost shall provide written notice to Brand of PebblePost’s intent to suspend Brand’s access to the Service until Brand cures the applicable breach. If such breach is not cured within fifteen (15) days of Brand’s receipt of such notice, PebblePost shall have the right to terminate the Agreement immediately by written notice.
c. Survival. All of the rights and obligations of each Party shall remain in effect during any Termination notice period, including Brand’s obligation to pay and PebblePost’s right to receive all fees and expenses incurred during such period. Upon any termination of this Agreement, (i) any SOW executed hereunder will terminate immediately; (ii) Brand shall pay to PebblePost, within thirty (30) days of such Termination, all fees owed to PebblePost hereunder for the Service rendered prior to such termination; (iii) PebblePost shall return to Brand, within 30 days of such Termination, all fees paid to PebblePost hereunder for any Service not rendered prior to such Termination, provided that no refund shall be due if such Termination results from Brand’s breach under Section 5(b); and (iv) Brand will remove the PebblePost JavaScript Tag from its website. All security, privacy and payment obligations herein, PebblePost’s ownership of and rights in the PebblePost Graph, Independent Information, Derivative Data, and Brand-Anonymized Data, the license granted to PebblePost under Section 2(a)(ii)-(iii), and PebblePost’s rights under Section 2(d), will survive any Termination of this Agreement.
6. Warranties & Security
a. Mutual Warranty. Each Party represents and warrants that (i) it has the legal power and authority to enter into these Terms of Service and each SOW, and that there is no outstanding contract, commitment, or legal impediment which may limit, restrict, or impair its ability to perform its obligations under the Agreement and (ii) it has implemented and maintains an information security program that contains administrative, technical, and physical safeguards that are appropriate to its size, the nature and scope of its activities, and the sensitivity of any customer information or other confidential information it collects and processes in connection with this Agreement.
b. PebblePost’s Warranty. PebblePost further represents and warrants that: (i) it has the necessary equipment, computer capacity, software, programs and trained personnel to properly provide the Services; (ii) to PebblePost’s knowledge, and based on contractual representations obtained from its sources, all Independent Information was properly provided, collected and used in accordance with applicable law; and (iii) it shall not knowingly transmit in the course of providing the Services (a) junk mail, spam, chain letters, “pyramid” or similar schemes or (b) any viruses or other computer code designed to interrupt, destroy, or materially limit the functionality of the Brand’s networks.
c. Brand’s Warranty. Brand further represents and warrants that:
(i) Brand’s use of the Services, its collection and provision of Brand Data and Brand Materials to PebblePost and its instructions for marketing to be performed by PebblePost will comply with all applicable federal, state, and local laws, regulations and self-regulatory frameworks and industry guidelines and Brand’s applicable privacy policies;
(ii) the Brand Materials furnished to PebblePost will be accurate and complete (including with respect to any information therein concerning Brand’s organization, products, services, industry, and competitors), and any and all Brand Marks have been subject to proper legal review and clearance;
(iii) Brand’s grant herein to PebblePost of the license to use the Brand Data and Brand Material will not breach any confidentiality or other obligations to, or infringe, misappropriate or violate the intellectual property rights or privacy or contract rights of, any other party;
(iv) Brand possesses all necessary licenses and/or other authorizations required to offer its products and/or services to users;
(v) any Brand website from which Brand Data or Event Data is collected in connection with use of the Services will include a publicly available privacy policy that (a) accurately discloses and, where legally required, obtains consent to Brand’s marketing, behavioral advertising and mailing practices and the collection, use and disclosure of consumer data in connection therewith, including the placement and use of all tags, pixels, and other tracking technologies and that data collected may be shared with or used by marketing partners to target advertising online and offline based on the consumer’s online, offline or mobile activity, and (b) informs users how they may request that their data is not shared or sold, and deletion of their data, and opt out from receiving such targeted advertisements, including instructions for accessing an opt-out mechanism; and Brand represents and warrants that it has provided all notices and obtained all consents necessary for PebblePost to collect, use, retain, and Commercialize the Brand Data and Event Data as contemplated by this Agreement, including PebblePost’s inclusion of such data in the PebblePost Graph and its Commercialization of Derivative Data and Independent Information as a Third Party in accordance with Section 2(d); and
(vi) Brand shall not provide Prohibited Data to PebblePost, except that Brand may provide video viewing data for CTV Services expressly identified in an SOW, and represents that any such data is collected and disclosed to PebblePost in compliance with the Video Privacy Protection Act, including any required consumer consent; and Brand represents that any consumer health data provided in connection with the Services complies with all applicable state consumer health data laws, including obtaining any required consumer consent prior to disclosure to PebblePost.
d. Agency. Where an Agency is involved in Brand’s engagement of PebblePost, Brand is the contracting Party bound by the representations, warranties, and obligations under this Agreement, and Agency’s role is limited to executing and administering Services on Brand’s behalf, including payment of fees, unless an SOW expressly provides that Agency is also a Party bound to specified obligations herein. Agency represents and warrants that it has the authority to act on Brand’s behalf for these purposes. Regardless of which entity is a Party, any entity transmitting Brand Data, Event Data, or campaign instructions to PebblePost, or operating tags, pixels, or ad-serving technology in connection with the Services, represents that it will not introduce unauthorized third-party tracking technology or alter agreed data feeds without PebblePost’s and Brand’s prior written notice.
e. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES AND ALL DATA IS PROVIDED ON AN “AS IS” BASIS, AND ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY PEBBLEPOST TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PEBBLEPOST MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, COMPATIBILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, UNITED STATES POSTAL SERVICE, AND OTHER DELIVERY SERVICES. PEBBLEPOST IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT REASONABLY UNDER ITS CONTROL.
7. Confidentiality
a. Confidential Information. As used herein, “Confidential Information” means any information which is (i) marked confidential or identified as confidential by the Party disclosing such information (the “Discloser”) or (ii) by its nature or under the circumstances surrounding its disclosure generally considered proprietary or confidential (including without limitation information concerning Discloser’s processes, inventions, trade secrets, ideas, designs, research, know-how, business methods, production plans, marketing and branding plans, finances and pricing, and customer lists). Confidential Information shall also include any materials in whatever form prepared by the Party in receipt of such Confidential Information (the “Recipient”) or its directors, officers, employees, corporate Affiliates, agents or advisors (collectively, “Representatives”), which contain or reflect, or are generated from Confidential Information. The Recipient agrees that it and its Representatives will keep the Discloser’s Confidential Information strictly confidential and not use such Confidential Information in any way other than in direct connection with the Recipient’s performance of its obligations and exercise of its rights under this Agreement. All Confidential Information shall remain the sole property of the Discloser and its confidentiality shall be protected by the Recipient and its Representatives with at least the same degree of care as the Recipient uses for its own confidential and proprietary information, but not less than reasonable care.
b. Exceptions. The term Confidential Information shall not include information that: (i) is or becomes publicly available through no fault of the Recipient, (ii) is independently developed by the Recipient outside the scope of this Agreement and without access to any Confidential Information of the Discloser, (iii) is rightfully obtained from third parties without obligation of confidentiality, or (iv) is disclosed under operation of law or pursuant to a court order, subpoena or governmental authority, provided that the Recipient (x) promptly notifies the Discloser of such order; (y) fully cooperates with respect to any steps taken by the Discloser to seek further protection of such Confidential Information, including seeking a protective order; and (z) limits such disclosure to that which is required.
8. Indemnification; Insurance
a. PebblePost Indemnity. PebblePost will indemnify, defend and hold harmless Brand and its affiliates, officers, directors, employees and agents from and against all losses, liabilities, damages and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from third party claims (collectively, “Claims”) that arise out of or relate to (a) an allegation that the PebblePost Platform or Services violate the intellectual property rights of a third party under the laws of the United States, or (b) PebblePost’s breach of its representations or warranties under this Agreement. The foregoing will not apply to the extent that (i) PebblePost relied upon the Brand Materials or Brand Data provided, selected or approved by Brand, (ii) Brand or its designees, licensees, distributors, franchisees or affiliates damaged, misused or modified the Mail Pieces, or Services beyond the scope of the Agreement, or (iii) the Claim arose from Brand’s performance of (or failure to perform) its obligations under this Agreement, or Brand’s breach of its warranties under this Agreement.
b. Brand Indemnity. Brand will indemnify, defend and hold harmless PebblePost and its parent, affiliates, officers, directors, employees and agents from and against all Losses arising from Claims that arise out of or relate to (a) the Brand Data or Brand Materials, and (b) Brand’s breach of its obligations, representations or warranties under this Agreement.
c. Indemnification Procedures. The Party seeking indemnification will promptly notify the indemnifying Party of all indemnifiable Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying Party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying Party at the indemnifying Party’s expense in connection with the defense or settlement of all such Claims; and (ii) be entitled to participate at its own expense in the defense of all such Claims. The indemnifying Party will have sole and exclusive control over the defense and settlement of all such Claims; provided, however, the indemnifying Party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party without its prior written consent.
d. Insurance. During the Term and for three (3) years thereafter, each Party shall maintain insurance coverage adequate to cover claims arising out of its performance of its obligations hereunder, including insurance of the following kinds, in at least the following amounts and, for general liability coverage, naming the other Party an additional insured as its interests may appear during the Term: (i) comprehensive general liability, including contractual liability coverage, with a combined single limit of $1,000,000 per occurrence and $2,000,000 aggregate; (ii) workers’ compensation, with statutory limits as prescribed by applicable state laws, and employers’ liability coverage with limits of $1,000,000; (iii) errors and omissions (professional liability) insurance, which includes coverage for breach of privacy in the amount of at least $2,000,000 per occurrence and at least $4,000,000 in the aggregate; (iv) cyber insurance, including coverage for transmission of a virus, hacker damage, theft or unauthorized disclosure of private information, theft of digital ID, cyber business interruption, cyber extortion, and third party and first party coverage in the amount of at least $2,000,000 for each occurrence and at least $4,000,000 in the aggregate; and (v) excess liability insurance, in the amount of at least $9,000,000 per occurrence. Such insurance policies shall contain a provision or endorsement that no cancellation or termination in coverage which adversely affects the rights and/or interests of the insured Party shall be made without giving the other Party at least thirty (30) days’ prior written notice. The above required insurance shall not limit or restrict in any way either Party’s indemnification obligations under this Agreement.
9. Liability
EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY BRAND TO PEBBLEPOST DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, PROVIDED THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO (I) BRAND’S BREACH OF SECTION 1(b)(c)-(d) (UNAUTHORIZED ACCESS, DISCLOSURE, OR REVERSE ENGINEERING OF THE PEBBLEPOST PLATFORM OR PEBBLEPOST DATA), (II) EITHER PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY), (III) PEBBLEPOST’S INDEMNIFICATION OBLIGATION FOR THIRD-PARTY INTELLECTUAL PROPERTY CLAIMS UNDER SECTION 8.a(a), OR BRAND’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.b, OR (IV) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. FOR THE AVOIDANCE OF DOUBT, PEBBLEPOST’S INDEMNIFICATION OBLIGATION FOR BREACH OF ITS REPRESENTATIONS OR WARRANTIES UNDER SECTION 8.a(b) REMAINS SUBJECT TO THE FOREGOING LIMITATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PEBBLEPOST, ITS AFFILIATES OR THEIR RESPECTIVE SUPPLIERS BE LIABLE TO BRAND FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER PECUNIARY LOSS) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR ANY SERVICE DATA, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO PROVIDE OR USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR, DEFECT, OR OMISSION, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. General
a. Integration. This Agreement constitutes the entire understanding and agreement between the Parties with respect to the Services and supersedes any and all prior or contemporaneous understandings, agreements or communications between the Parties concerning the Services. To the extent any terms of these Terms of Service and an SOW conflict, these Terms of Service will control, unless the SOW expressly identifies the conflicting Section of these Terms of Service and states that it is superseded, in which case the SOW will control solely as to that Section. No amendment to this Agreement will be effective unless it is signed by authorized representatives of both Parties. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, and taken together will be deemed one and the same instrument.
b. Governing Law. This Agreement is governed by laws of the State of New York, without regard to its conflict of laws principles. The Parties submit to the exclusive jurisdiction of the state courts of the State of New York and to the jurisdiction of the United States District Court for the Southern District of New York, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
c. Waiver. No failure or delay by any Party to enforce any term of this Agreement, or to exercise any right or remedy hereunder, shall constitute a waiver of any such term, right or remedy. Any provision hereof may be waived only in a writing signed by both Parties.
d. Notices. All notices hereunder shall be sent in person, or by registered or certified mail, return receipt requested, or sent by a nationally recognized overnight delivery service. Notices by regular mail shall be deemed delivered five (5) days after mailing, and notices by overnight courier shall be deemed delivered one day after deposit with such courier. If to PebblePost, all notices shall be sent with a copy to (which shall not itself constitute notice):
General Counsel PebblePost, Inc.
1178 Broadway, #4505 3rd floor
New York, NY 10001
E: legal@pebblepost.com
If to Brand, all notices shall be sent to the address set forth on a Statement of Work.
e. Assignment. Neither Party may assign, transfer or delegate any of its rights or obligations hereunder this Agreement without the prior written consent of the other Party, provided that PebblePost may assign this Agreement to an entity that controls, or is controlled by, or is under the common control of PebblePost, or in connection with any merger, acquisition, divestiture or other corporate reorganization of PebblePost.
f. Relationship. Nothing in this Agreement will be deemed or construed to create a joint venture, partnership, or similar relationship between the parties for any purpose. Each Party is an independent contractor of the other, and PebblePost and its employees will not be entitled to any benefits accorded to employees of Brand.
g. Force Majeure. Except with regard to payment obligations, neither Party will be liable to the other Party for delays or failures to perform under this Agreement to the extent resulting from any cause beyond the reasonable control of the Party affected.
| BRAND | PEBBLEPOST | |
| Signature | ||
| Signing Date | ||
| Signee Name | ||
| Signee Email | ||
| Company Name | PebblePost, Inc. |