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Kasasa Marketing Services terms & conditions

Effective Date: September 21st, 2020 - November 22, 2020
Version: v20q3

These KASASA MARKETING SERVICES TERMS AND CONDITIONS (“T&Cs”), together with the terms agreed to in the Master Services Agreement and/or License & Services Agreement (“MSA”), Product Exhibit(s), or any other attachments (collectively, the “Agreement”), set forth the terms and conditions pursuant to which Kasasa, Ltd. ("We", "Us", "Our") will provide marketing services to You. Capitalized terms used in these T&Cs which are not defined herein shall have the meanings set forth in the Agreement.

  1. SCOPE. These T&Cs will govern any and all marketing services We perform (“Marketing Services”), including but not limited to, (i) as specifically identified in writing, statements of work, insertion orders executed by You or by electronic acceptance (collectively, “Orders”); and (ii) offered by Us, including those within, relating to, or arising from, Our marketing solutions platform (“Connect”). Any individual that executes an Order or has access to Your Connect account will be deemed to have authority to make decisions and bind You (Your “Approver”).
  2. ORDERS; TERM; TERMINATION.
    1. Orders. Certain Marketing Services will be documented in, and subject to, an Order. When applicable, an Order may also set forth objectives to be accomplished, assumptions upon which the Order is based, party responsibilities, and description of any Deliverables (defined below). If required, We will deliver an estimated schedule that includes the commencement date and duration, projected billable effort, and any other applicable information. If an Order contains an estimated schedule, each party will make reasonable efforts to carry out its responsibilities according to that schedule.
    2. Order Modifications. Changes or modifications to an Order must be in writing and agreed to by both parties.
    3. Term. Subject to Section 9, these T&Cs are effective as of the date Marketing Services are requested or provided, whichever is earlier, and will continue for the life of the Agreement.
    4. Termination/Cancellation. The term of any Order executed by You will be described in such Order. Subject to section 2.4.1 and Our approval, You may terminate all or part of an Order, provided, however, You provide to Us written notice as soon as possible, but no less than 30 days prior to the planned public launch or flight date of the applicable Marketing Service. You agree to pay for (or We will deduct from any prepaid balance) actual and reasonable costs and expenses We incurred for any cancelled Marketing Services, including any non-recoverable expenses and third-party fees. We will use commercially reasonable efforts to mitigate such costs and expenses.
      1. Multi-Year Marketing Commitments. Multi-year commitments to Marketing Services, including but not limited to Optimized Results Based Marketing, are subject to the agreed upon term in the Order and may only be terminated for convenience pursuant to the terms of the Agreement.
  3. CUSTOMER MATERIALS. “Customer Materials” means any materials You provide: (i) for incorporation into or utilization of a Marketing Service; (ii) which will be modified or customized in the course of providing Marketing Services; or (iii) which will enable Us to provide to You any Marketing Services. Any Customer Materials provided by You will be identified in the applicable Order.
    1. License to Use. You will deliver any Customer Materials required by Us in a prompt and timely manner. You hereby grant Us a non-exclusive, royalty-free license to use, copy, modify, and create derivative works of the Customer Materials solely for the purpose of providing to You any Marketing Services.
    2. Distribution Lists. When applicable, You will provide lists of necessary data for distribution of materials to current and/or former End Users, in a mutually agreeable format, at least 10 business days before the launch of the Marketing Service. Such lists will contain only those current and/or former End Users who have consented to receive distributed communications from You. Any lists for distribution to prospective End Users will be acquired and provided by Us.
    3. Confidentiality. Customer Materials may contain End User account-specific data, PII, and/or NPI. Such Customer Materials are designated as Your Confidential Information, and We and Our Partners, who have agreed to maintain confidentiality at a level consistent with Us, will protect and secure such Confidential Information as set forth in the Agreement.
  4. FEES.
    1. Marketing Service Fees. Fees for Marketing Services are due upon signing, unless otherwise specified. Any estimates of fees, effort, timelines, or completion of work are good-faith estimate only, and is based on information known to Us at the time such estimate is made. Estimates are not fixed fees, time, or rate guarantees.
    2. Expenses/Taxes. Certain Marketing Services may include purchasing services from third parties or reimbursing Us for Our reasonable travel expenses, as further set forth in the Agreement. When applicable, these expenses will be outlined in the Order, and We will bill You, and You agree to pay, for all such expenses. When applicable, You agree to pay any and all sales tax.
    3. Reallocation. Changes to an Order may be necessary or desirable to accomplish Your marketing goals. You hereby authorize and direct Us on Your behalf to reallocate and/or reapply marketing funds to marketing efforts that We reasonably believe will best benefit You.
  5. REFERRAL MARKETING. In Connect You can manage and select programs for third-party products and services (“Referral Program(s)”) for Us to market to Your End Users (“Referral Marketing”). For each of Your End Users that completes the actions required for a Referral Program, You will receive a credit in the amount and frequency stated in Connect for the applicable Referral Program (“Referral Credit”). Referral Credit will be applied to Your monthly invoice with Us after End User Fees, or any portion thereof, has been received by Us. In the event that Your Referral Credit exceeds Your invoice with Us in any given calendar quarter, then We will pay You the balance within 90 days of the end of the applicable calendar quarter. We reserve the right to alter, update, modify, terminate Referral Programs and/or Referral Marketing at any time and without notice to You. “End User Fees” means fees, which are determined by Us, Our Partners or third-party providers, in Our sole discretion, and may be modified from time to time without notice to You, that the End User pays for the products in the Referral Programs. For the avoidance of doubt, Referral Marketing  does not apply to any third party services pertaining to "federally related mortgage loans” as defined under the Real Estate Settlement Procedures Act (RESPA) and its implementing Regulation X (12 C.F.R. § 1024).”
    1. Opt-in. You can select and manage Referral Marketing by affirmatively selecting the Referral Program in Connect (“Opt-In”). If You Opt-In, then You are agreeing that We can market the applicable Referral Program to Your End Users. After You Opt-in, if We notify You of material or substantive changes or modification to any marketing campaign (which does not include optimization modification or limited quantity A/B tests), creative and/or Referral Credit then You will have 30 days from date of the notice to approve or reject (see Pause or Opt-Out) such change or modification. If You do not Pause or Opt-Out of the Referral Marketing for a Referral Program, then it will be deemed approved. Once approved, marketing creative will be deemed approved by You until You Opt-Out.
    2. Pause. You may temporarily suspend Referral Marketing for a Referral Program for 30 days (“Pause”) if You select “Pause” in Connect at least 24 hours before marketing is sent to Your End Users. You cannot make any changes while a Referral Program is in Pause. After 30 days, the applicable Referral Program will automatically be deemed ‘Opt-In’. You can only Pause a Referral Program one time in a 90-day period (cannot exercise a Pause consecutively) and cannot Pause the same Referral Program more than four (4) times per year. You will continue to earn Referrals Credit while Referral Marketing is in Pause, but We will continue to issue Referral Credits earned prior to and after a Pause.
    3. Opt-Out. You may elect to terminate Referral Marketing for a Referral Program ("Opt-Out") at any time. Within 30 days of receipt of Your Opt-Out request in Connect, We will cease marketing the applicable Referral Program to Your End Users IMPORTANT: IF YOU OPT-OUT OF REFERRAL MARKETING, THEN YOU HEREBY FORFEIT ALL REFERRAL FEES FOR THE APPLICABLE REFERRAL PROGRAM EFFECTIVE AS OF THE DATE OF OPT-OUT. IF YOU REINSTATE (OPT BACK IN) TO THE SAME REFERRAL PROGRAM, YOU WILL HAVE NO RIGHTS TO REFERRAL FEES THAT WERE EARNED PRIOR TO THE OPT-OUT.
    4. Your Obligations. You are responsible for: (i) managing Opt-In, Pause and Opt-Out in Connect; (ii) agreeing to Referral Marketing, disclaimers and Referral Credits per the term of these T&Cs; (iii) Your privacy disclosures to Your End Users; and (iv) and completing Our Referral Marketing training.
  6. WORK PRODUCT & DELIVERABLES.
    1. Work Product Ownership We own all right, title, and interest (including of the copyright) to any and all items We deliver to You as specified in any Order (“Deliverable”). With respect to any Deliverable, We hereby grant You the non-exclusive, worldwide, fully paid-up, royalty-free license to use copies of Deliverables solely in connection with Your use of Kasasa, until termination of the Agreement. Any images, photographs, or the like (“Images”) used for Marketing Services may be the property of one of Our Partners. All right, title, and interest in such Images belong to Our Partner and We have acquired a license to use Images for the sole purpose of promoting and marketing Products. You are prohibited from using the Images for any other purpose. Violations of Our Partners rights are punishable by law.
    2. Process. We will design, build, and distribute Deliverables as described in the Order or applicable Marketing Service, at least 5 days prior to any public launch of such Marketing Services. We will not hold the date of any such public launch or flight until You have executed an applicable Order.
    3. Timeline. Upon receipt of an executed Order, We will begin to generate artwork and content for any applicable Marketing Service, and any such artwork or content will require Your approval. Once We deliver final artwork and content, You will have 5 business days to accept or request reasonable modifications to such artwork or content within scope. At the end of the 5 business days, or when We receive Your approval, We will utilize the final artwork or content in the applicable Marketing Service. This Section does not apply to Referral Marketing.
    4. Co-Branding. When necessary, We will insert Your logo, applicable identifying information, and/or trademarks into the applicable Deliverables in a form that is the same or similar to that used by You. We may continue to display Deliverables bearing Your logo, identifying information, and/or trademarks used in connection with the Marketing Services for promotional purposes, and We may continue to use Your logo, identifying information, and/or trademarks to reference Your participation in the Marketing Services.
    5. Customization. Upon request, We may provide custom creative work to You outside the standard creative assets provided, as Our availability or Referral Program allows. You will pay a rate of $150.00 per hour for any custom creative work requested by You.
  7. WARRANTY. This warranty supersedes any other warranty arising or relating to Marketing Services that may be found in the Agreement: We warrant that We will perform Marketing Services in a timely and professional manner, and in accordance with its description. If We fail to do so, and You have notified Us in writing of such failure within 5 business days of the receipt of such Marketing Services, We will re-perform the Marketing Services. If We are unable to re-perform, You may terminate the applicable Marketing Service, and We will refund the amount You paid for the nonconforming Marketing Service. Other than the warranty described above, Marketing Services are provided “as is,” and WE AND OUR PARTNERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR AS TO THE RESULTS YOU MAY OBTAIN ON ACCOUNT OF THE PROVISION OF OR YOUR USE OF OR ACCESS TO THE MARKETING SERVICES.
  8. INDEMNIFICATION. In addition to the terms and obligations regarding indemnification in the Agreement, You agree that, if any portion of the Marketing Services are performed onsite at Your location (or a location determined by You), You will indemnify, defend, and hold harmless Us, Our affiliates, officers, directors, employees, agents, and representatives (as well as Our Partners) from and against any and all Losses arising from or in connection with any third party claims (except to the extent such claim is a result of Our gross negligence or willful misconduct) that any or all representatives of either party directly caused any death, bodily injury, or damage to tangible personal property during performance of the Marketing Services.
  9. MODIFICATION. These T&Cs may be periodically updated by Us, including modifications, additions, or deletions of material provisions in these T&Cs. Your continued use of the Marketing Services following these changes constitutes your acceptance of the revised T&Cs. Unless agreed to otherwise, in writing, termination of the Agreement pursuant to the terms therein shall be Your sole recourse if you do not agree to any modification to these T&Cs.
  10. WEBSITE CREDENTIALS. You shall be held solely responsible for any and all activity using credentials issued to You; whether or not it is approved by any party. Unauthorized uses that result in, but are not limited to, economic, tangible and intangible property, or reputational damage, will be Your responsibility. Your Connect credentials, along with any other credentials given to You, shall be kept confidential from any unauthorized user.
  11. ADDITIONAL TERMS AND OBLIGATIONS.
    1. Notwithstanding anything stated to the contrary, You agree that We and Our Partners may retain and freely use, collect, and publicly disclose any Aggregated Data related to the Marketing Services, provided that any such disclosure does not contain any account-specific information, PII, or Your Confidential Information and does not identify You.
    2. Email Services. If Marketing Services include email marketing, You acknowledge and agree to the following:
      1. In compliance with the United States CAN-SPAM Act of 2003 and the FTC CAN-SPAM Rule of 16 C.F.R. 316 (together, “CAN-SPAM”), each marketing email sent will contain (i) Your logo and identify You as the sole sender, (ii) legally sufficient identification that the message is an advertisement or solicitation, (iii) a CAN-SPAM-compliant opt-out mechanism, and (iv) a Your valid physical postal address;
      2. To inform Us weekly, throughout the duration of the Marketing Service, of any withdrawals of consent (“Opt-out Notices”) received from any recipients; and
      3. In order to promote CAN-SPAM, We will (i) disable or otherwise remove any email addresses identified in connection with any Opt-out Notices that We receive from the recipients from future promotional email communications sent by Us within ten days of the receipt of any Opt-out Notice, and (ii) make available to You, upon request, a list of Opt-out Notices and associated email addresses received by Us.
      4. Pixels. A “Pixel” is a device used to track End User visits and advertising impressions on Your website for use in digital marketing campaigns. You agree that We and Our Partners may utilize Pixels on Your website for better results in each marketing campaign. Use of Pixels on Your website requires the disclosure of Pixels to each End User. You hereby agree that You will include the following provision, or a provision that is materially similar, on Your website’s privacy policy: “This website uses pixel tags, otherwise known as web beacons, to set, read, and/or modify targeting cookies. Pixel tags may be used to obtain information about the computer accessing the website, such as an IP address, the time the pixel tag is sent, the computer operating system and browser type, and information similar to the foregoing. We use the information collected by pixel tags to deliver more targeted advertising, enhancing the advertising experience for each website user.”