PEBBLEPOST TERMS OF SERVICE
These terms of service (“Terms of Service”), dated as of _____ (the “Effective Date”), is 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 Services, any SOWs executed between the Parties, and any mutually executed Amendments or Addenda that the Parties may subsequently enter.
Brand – The advertiser or marketer, engaging in PebblePost’s Services.
Brand Data – A Brand’s Customer Relationship Management File (CRM File), provided to PebblePost as a necessary part of the PDM Services to Brand, to enable accurate targeting of consumers, suppression of specified consumers, or other PDM Services specified in an SOW. Brand Data may include a CRM File, or a Do Not Mail File, or a Transaction File (defined herein) which may include consumer addresses, email, phone and any data related to that consumer transaction data. Brand Data is included in PebblePost’s Graph in pseudonymized form, as an essential part of PDM Services.
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.
Confidential information – defined herein.
CTV – A PDM Service for reaching households through a connected TV platform as more fully detailed in an SOW.
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 500+ 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 Data obtained or collected by PebblePost and included in the PebblePost Graph, including any data obtained from third parties while providing the Services, and (iii) Event Data collected by PebblePost from consumers through its JavaScript Tag.
PebblePost Data & Privacy Representations – PebblePost is compliant with all applicable US state privacy regulations as more fully elaborated herein.
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 PDM 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 PebblePost Services (defined below).
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. Please visit this site for updates that may apply to your Brand: https://www.pebblepost.com/privacy-policy/
PDM™ Services (or PebblePost Services) – The set of Services that allows PebblePost to provide leading capabilities to reach consumers with relevant marketing. The Services may include and are not limited to the ability to qualify, rank, target, mail, serve and measure, all of which are integrated as part of a full stack solution. Specific Services are identified in an SOW.
Personal Information (or Personal Identifiable Information or PII) – Information about a consumer or household that may be reasonably used to identify an individual, device, or household.
Pseudonymized Data – According to state privacy regulations, pseudonymized data is personal data that can’t be attributed to a specific person without additional information. Pseudonymization is a way to remove personal identifiers from data and replace them with placeholder values.
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.
Statement of Work (or SOW) – A mutually executed document that describes one or more PDM 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 PDM 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 PDM 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.
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
Generally. 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 PDM Services to Brand.
(b) Brand shall retain full right, title and ownership to its Materials.
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. In connection with the Brand’s use of the Services, Brand shall not provide or make available to PebblePost or cause PebblePost to use any: personal information related to a data subject under the age of thirteen; location data; Social Security number, driver’s license or other government issued identification numbers; telephone numbers identified as unlisted or unpublished; credit, debit card or financial account numbers; personally identifiable payroll/financial information, including employee identification numbers; financial data that implicates or is governed by the Fair Credit Reporting Act or similar laws, rules or regulations; or personally identifiable health/ medical/sex-life information or any data that implicates or is governed by the Health Insurance Portability and Accountability Act or the Health Information Technology for Economic and Clinical Health Act.
(c) Brand shall not permit any third party to access the PebblePost Platform, or otherwise sell, rent, license, provide, or distribute 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 PDM 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 PDM 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 PDM Service 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 PDM Service. 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 a 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, disclosure 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 PDM 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 any enhancements or incorporated data therein); (iii) Independent Information; (v) any PebblePost-proprietary software programs; (vi) 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; (vii) 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; (viii) 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 (ix) all intellectual property rights related to any of the foregoing (collectively the “PebblePost Intellectual Property”). Brand’s use of the PDM 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.
e. Brand Intellectual Property. As between PebblePost and Brand, and without limiting PebblePost’s rights to incorporate pseudonymized Brand Data in PebblePost’s Address 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 PDM 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 right and license to use Brand Data to provide the Services to Brand, and to include such Brand Data in PebblePost’s Graph in pseudonymized form, in order to fully participate in the PDM Services as more fully set forth in an SOW. PebblePost will include and maintain the Brand Data in the PebblePost Graph in accordance with PebblePost’s Data and Privacy Representations set forth herein, in these Terms of Service. For the sake of clarity, including Brand and Event Data in PebblePost’s Graph, in pseudonymized form, is necessary to provide and access PDM 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.
3. PebblePost Data & Privacy Representations
PebblePost employs best privacy controls to ensure that PII is collected, stored, transferred and processed in accordance with all 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 collect, store, process, transfer or receive any data from outside of the US; therefore the GDPR and non US privacy regulations are not applicable to PDM Services;
(b) PebblePost does not collect, store, process, transfer or receive any sensitive data (as defined under appliable state privacy regulations), children’s data (as defined by Children’s Online Privacy Protection Act), protected health information (PHI) as defined by the Health Insurance Portability and Accountability Act (HIPAA);
(c) PebblePost does not share Raw Brand Data, including Brands’ names, or consumers’ PII, with other Brands;
(d) Brand Data and Event Data is pseudonymized in the PebblePost Graph; such data is re-identified only on Brand’s behalf for purposes of campaign activation and analytics;
(e) PebblePost has a comprehensive set of policies and technologies in place to ensure no brand can leverage the Graph to conquest a competitor’s consuners, including:
(i) The scale of the data in the PebblePost Graph, which includes every US household and website, transaction, and CRM data from 500+ participating brands, means no Brand, no matter how large or specialized, makes up a majority portion of any data set; and
(ii) No one Brand’s data drives more than 5% of any target audience, and all participating Brand Data is randomly distributed to eliminate the models from biasing to a single Brand’s. PebblePost has a holistic set of controls to ensure no one Brand’s Data dominates any model it builds across all products data.
(f) All PII from Brand Data is separated from Raw Brand Data and placed in a secure S3 bucket with encrypted keys, and:
(i) These encrypted keys are changed in accordance with best industry privacy and security standards;
(ii) Raw Brand files are not used or accessed on behalf of other Brands;
(iii) Raw Brand PII is proactively deleted every 30 days after completion of campaign including analytics and debugging (up to 180 days post sends).
(g) PebblePost does not onward sell or share Brand Data (as those terms are defined under applicable privacy regulations). PebblePost engages limited and select Service Providers who have passed industry security standards. These Service Providers are engaged solely on behalf of PebblePost for facilitating components of PDM Services. Any Brand Data or Event Data transferred to these Service Providers may not be used for any purposes beyond PDM Services;
(h) PebblePost complies with all applicable US privacy laws and provides a Secure File Transfer Protocol (SFTP) folder for each Brand to provide ongoing consumer privacy requests to accommodate all privacy regulations and consumer preferences;
(i) 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 of the sale, share, or collection of their PII, where required by applicable laws;
(j) PebblePost is a member of the DAA;
(k) PebblePost conducts annual pen testing and may provide such results upon request, in lieu of third party data audits which PebblePost does not permit;
(l) PebblePost completes annual SOC2 type 2 certifications.
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, for example in connection with 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; and (v) Brand will remove the PebblePost JavaScript Tag from its website. All security, privacy and payment obligations herein 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) 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) (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) (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) (iv) Brand possesses all necessary licenses and/or other authorizations required to offer its products and/or services to users; and
(v) (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 (including that their marketing. partner may place a tag on Brand’s sites) and that data collected may be shared with or used by marketing partners to target advertising online and offline based on the consumers’ online, offlines 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, and includes instructions for accessing an opt-out mechanism.
c. All Brand Data must contain information properly collected and provided in accordance with applicable law and with Brand’s applicable privacy policies and terms of use (which shall include clear disclosures to the consumer that such information may be provided to a third party for use such as for the Services contemplated herein).
d. To Agency if Applicable. If an Agency is entering into this Agreement on behalf of a Brand (for example, as an advertising agency on behalf of its marketer client), Agency represents and warrants that it has the authority as the agent for such Brand to bind such Brand to these Terms of Service and each SOW, and that Agency for Brand will ensure that such Brand complies with the Terms of this Agreement. Further, Agency for Brand accepts responsibility for the actions of Brand and liability for all expenses incurred through the provision of PDM Services to Brand.
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 Programmatic Direct Mail 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 and (ii) Brand or its designees, licensees, distributors, franchisees or affiliates damaged, misused or modified the Mailpieces, or PDM Service beyond the scope of the Agreement, or (iv) 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 MOST RECENT TWELVE (12) MONTH PERIOD. 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 PDM SERVICE OR ANY SERVICE DATA, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO PROVIDE OR USE THE PDM SERVICE, 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. 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.
442 Fifth Avenue, #1942
New York, NY 10018
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.