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Date Last Updated: April 27th, 2024
These Darnell Digital Subscription Services Terms of Use (“Terms of Use”) are entered into between you (“You” or “Your”), and Darnell Digital Incorporated, located at 16603 WILLIAMHURST LANE, HOUSTON, TX 77090 (“Darnell Digital”). If You accept or agree to these Terms of Use on behalf of a company or other legal entity by executing an Order Form referencing these Terms of Use (together the “Agreement”), You represent and warrant that You have the authority to bind that company or other legal entity to these Terms of Use. “You” and “Your” will refer and apply to that company or other legal entity.
Please carefully read these Terms of Use and our Privacy Policy, located at darnell-digital.com/legal/privacy-policy. The Agreement governs Your access to the use of the Subscription Services and constitutes a binding legal agreement between You and Darnell Digital.
YOU ACKNOWLEDGE AND AGREE THAT, BY EXECUTING AN ORDER FORM REFERENCING THESE TERMS OF USE AND ACCESSING THE SUBSCRIPTION SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, PLEASE CONTACT YOUR ACCOUNT MANAGER AS SOON AS POSSIBLE AND DO NOT ACCESS OR USE THE SUBSCRIPTION SERVICES.
Subject to Your compliance with the Agreement, Darnell Digital grants to you a limited, worldwide, non-exclusive, non-transferable (except as permitted in the Agreement) license to use the Subscription Services as described on an applicable Order Form and Documentation during the Term solely for Your own internal business purposes.
Darnell Digital may make the Subscription Services available to Your Affiliates, provided that such Affiliate(s) execute an Order Form referencing these Terms of Use. You may make the Subscription Services available to Your customers as part of Your provision of services to Your customers provided that You shall be fully responsible for Your customer use of the Subscription Services and You have the authority to act on behalf of such customers with respect to all obligations and representations set forth in these Terms of Use.
You and Your Authorized Users shall not:
(A) knowingly permit access to the Subscription Services by anyone other than Your Authorized Users;
(B) copy, modify, distribute, resell, display, or rent any portion of the Subscription Services except as permitted under the Agreement;
(C) attempt to disassemble, duplicate, copy, modify, decompile, frame, mirror, create derivative works from, reverse engineer, or distribute any portion of the Subscription Services or permit any third party to do so;
(D) subject to Your rights permitted under these Terms of Use, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services and/or Documentation available to any third party except Your Authorized Users and customers, or attempt to obtain, or assist third parties in obtaining, access to the Subscription Services and/or Documentation;
(E) use the Subscription Services to transmit any unsolicited commercial communications unless permitted by law;
(F) send, store, or transmit data that may violate the intellectual property rights of any third party, or which have been unlawfully obtained;
(G) send, store, or transmit materials or data into the Subscription Services containing Viruses, or use the Subscription Services to transmit Viruses to third parties;
(H) use the Subscription Services to store, transmit, or process data that:
(i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property; and Darnell Digital reserves the right, without liability or prejudice to any other rights, to disable Your access to the Subscription Services if You violate this Section 1.3(H); and
(I) except as permitted herein, share with any third parties, any Credentials, account numbers, and account profiles for the Subscription Services.
Darnell Digital owns and retains title and interest in and to the Subscription Services, including all copies of any software used for the provision of the Subscription Services and all Intellectual Property Rights therein or relating thereto. All rights not expressly granted to You in the Agreement are reserved by Darnell Digital.
You hereby grant to Darnell Digital a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use, modify and incorporate Your Feedback into the Subscription Services and to further market, distribute and sell the Subscription Services with Your Feedback incorporated therein.
You shall exclusively own all rights, title, and interest in and to the Subscriber Data. You hereby grant to Darnell Digital a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term of the Agreement and the follow-on period described in Section 8.3(B) to: (i) collect, analyze, use, store, and transmit the Subscriber Data, (ii) combine and aggregate the Subscriber Data with other data to perform the Subscription Services, and (iii) to disclose the Subscriber Data as required by law. You grant Darnell Digital a worldwide, irrevocable, non-exclusive, transferable, fully paid-up, and royalty-free license to aggregate, use, display, reproduce, distribute, and analyze Aggregated Subscriber Data in any format and through any applicable channels for any legal purposes.
You acknowledge and agree that Darnell Digital may collect Aggregated Use Data related to Your use of the Subscription Services collected in accordance with the Agreement in order to continue to develop, improve functionality of, and provide bug-fixes for the Subscription Services. Darnell Digital is the sole owner of Aggregated Use Data.
You may not transfer, or cause to be transferred, or input Personal Data into the Subscription Services without notifying Darnell Digital in writing. To the extent that Subscriber Data is collected by, or on behalf of, You or Your customers from end users by the Subscription Services, You represent and warrant that all appropriate consents and waivers have been or will be obtained from such end-user(s).
If you use Darnell Digital Smart Pixel or Darnell Digital Tracker, You must post on Your website(s) a privacy policy that: (A) complies with all applicable laws, rules, and regulations, (B) accurately discloses the data collection, use, and disclosure practices applicable to such site, and (C) discloses the use of one or more third parties for ad serving and/or data collection activities. The parties agree that their privacy polic(ies) will provide end-users with a conspicuous link to a functional opt-out page so that end-users may opt-out of tracking activities. You may not use Subscription Services to collect data derived from end-user or data pertaining to an end-user who has opted-out of having those data collected. The parties agree to use industry-standard security measures in connection with their obligations hereunder, including industry-standard security measures for data transmission and storage.
Darnell Digital shall maintain commercially reasonable, industry standard security practices to transmit, store, and process Subscriber Data. In the event of Subscriber Data loss or corruption, Darnell Digital will use commercially reasonable efforts to restore such lost or corrupted data from the latest backup of Subscriber Data maintained by Darnell Digital. Darnell Digital shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Subscriber Data not directly under the control of Darnell Digital. DARNELL DIGITAL SOFTWARE’S EFFORTS TO RESTORE LOST OR CORRUPTED SUBSCRIBER DATA PURSUANT TO THIS SECTION, SHALL CONSTITUTE DARNELL DIGITAL SOFTWARE’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF SUBSCRIBER DATA. Darnell Digital reserves the right to modify its data storage practices, so long as those modifications do not reduce or diminish those storage practices in effect as of the Effective Date.
During the Term, You grant Darnell Digital the right to publish Your corporate logo on its website and in marketing materials that include examples of Darnell Digital customers and publicly acknowledge You as a Darnell Digital customer in a press release, the content of which, Darnell Digital and You shall mutually approve in advance. Subject to Your agreement, You may participate in a Darnell Digital customer case study, provided that Darnell Digital covers the costs of Your participation.
You are responsible for Your Authorized Users’ use of the Subscription Services. You shall promptly notify Darnell Digital of any suspected or alleged violation of the Agreement by an Authorized User, including any unauthorized use of any password or account or any other known or suspected breach of security of the Subscription Services. Darnell Digital may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to You in the event that Darnell Digital reasonably determines that such Authorized User has violated the Agreement.
You understand that Your Authorized Users use of the Subscription Services is dependent upon Your access to telecommunications and internet services. You must acquire and maintain at Your own expense such telecommunications and Internet services, including, without limitation, any and all fees and taxes of any kind related to the foregoing. Darnell Digital shall not be responsible or liable for any data loss or corruption, lost communications, or any other losses or damages caused by Your telecommunications and internet service providers or due to Your utilizing telecommunications and internet services.
You or Your Authorized Users may maintain accounts with Publishers that may be accessed via the Subscription Services. Any such accounts shall be subject to the terms and conditions of Your arrangements with such Publishers, and Darnell Digital hereby disclaims any and all responsibilities and liabilities related thereto.
In consideration for Darnell Digital providing the Subscription Services, You shall pay to Darnell Digital those Fees described in the applicable Order Form.
You agree to provide Darnell Digital with complete and accurate billing and contact information on the Order Form. The Fees shall commence on the Billing Start Date defined on the applicable Order Form. Platform Fees will be due even if You do not use the Subscription Services during a particular month or if Your use of the Subscription Services does not meet the lowest level of Fees calculated from the percent of spend rate. At the end of each month, Darnell Digital will automatically issue an invoice to You, or bill Your credit card for the Subscription Services. Darnell Digital will invoice You in accordance with the Order Form and will either (i) bill You in advance for the Platform Fees and bill You at the end of each month for any Fees in excess of the Platform Fees, or (ii) issue You with a single invoice at the end of each month for all Fees. Each invoice is due and payable as described on the Order Form (the “Due Date”).
If You incur third party API costs through Your use of the Subscription Services and such API costs are billed to Darnell Digital by Your Publishers, Darnell Digital will invoice You the applicable API costs at no additional mark up and You agree to pay Darnell Digital for such API costs. Darnell Digital will provide You with notice if such API costs are imposed on You.
If You believe in good faith that Your invoice is incorrect, You must contact Darnell Digital in writing within 10 days of Your receipt of the invoice and describe (in reasonable detail) the amount of the disputed charges and the reason for Your good faith disagreement. If Darnell Digital has not received payment within 10 days after the Due Date, interest shall accrue on the past due amounts at the rate of one and 1.5% per month, but in no event greater than the highest rate of interest allowed by law, calculated from the Due Date until the date that payment is received by Darnell Digital. You shall reimburse Darnell Digital for the reasonable costs of collection, including reasonable fees and expenses of attorneys. If Your account is 30 days or more past the Due Date, in addition to any of its other rights or remedies, Darnell Digital reserves the right to suspend the Subscription Services, without liability to You, until such amounts are paid in full.
Darnell Digital shall not be responsible for any fees Your financial institution may impose upon You in the payment of Your invoice (including without limitation any transfer fees).
Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT if applicable) (collectively, “Taxes”). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Darnell Digital’s net income.
By virtue of this Agreement, the parties may have access to each other’s Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
During the Term and for a period of three years after expiration or termination of the Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under the Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information. Furthermore, You acknowledge and agree that, upon expiration or termination of the Agreement, Darnell Digital shall either destroy or deliver Subscriber Data back to You pursuant to Section 8.3, and shall have no other obligation to You regarding such Subscriber Data under this Agreement.
Darnell Digital warrants that the Subscription Services shall perform materially in accordance with the Documentation, which may be updated from time to time by Darnell Digital, and the Subscription Services will not contain or transmit to You any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF USE, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, DARNELL DIGITAL SOFTWARE DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. DARNELL DIGITAL SOFTWARE FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. DARNELL DIGITAL SOFTWARE FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DARNELL DIGITAL SOFTWARE OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
These Terms of Use shall commence on the Effective Date and shall remain in effect so long as the current or any subsequent Order Form(s) for the Subscription Services that references these Terms of Use is in effect.
Either party may terminate the Agreement upon written notice: (A) if the other party materially breaches the Agreement and fails to correct the breach within 30 days following written notice specifying the breach; (B) if there is an adjudication of bankruptcy of any party under any bankruptcy or insolvency law; or (C) if a receiver for business or property of the other property is appointed or the other party makes any general assignment for the benefit of its creditors. Darnell Digital may terminate a trial account or free account at any time in its sole discretion.
(A) Upon expiration or termination of the Agreement: (i) Your and Your Authorized Users right to access and use the Subscription Services shall immediately terminate; (ii) You and Your Authorized Users shall immediately cease all use of the Subscription Services; and (iii) the parties will make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.
(B) Darnell Digital will destroy or dispose of Your Subscriber Data in its possession unless Darnell Digital receives, no later than 30 days after the expiration or termination date, a written request to deliver to You the then-most recent back-up of Your Subscriber Data. Darnell Digital shall make commercially reasonable efforts to deliver the back-up copy to You within 30 days of receipt of such request. If requested by Darnell Digital, You shall pay reasonable expenses incurred by Darnell Digital in returning Subscriber Data to You. You agree and acknowledge that Darnell Digital has no obligation to retain and may delete Your Subscriber Data after 30 days from the expiration or termination date of the Agreement. Darnell Digital may retain all Aggregated Subscriber Data upon termination or expiration of the Agreement.
(C) Notwithstanding the foregoing, if the Agreement is terminated as a result of Your breach, Darnell Digital shall have no obligation to deliver any copy of the Subscriber Data to You, and may delete such Subscriber Data at any time after termination of the Agreement.
(D) Upon expiration or termination of the Agreement, Darnell Digital shall stop using Your corporate logo; provided, however, (i) Darnell Digital shall have a reasonable time to remove Your corporate logo from Darnell Digital’s website as well as from any promotional materials, (ii) Darnell Digital shall be entitled to distribute all of the promotional materials printed during the Term that include Your corporate logo, and (iii) Darnell Digital shall not be required to remove any such printed materials from circulation.
Section 5 shall survive any expiration or termination of the Agreement for so long as either of the parties has any rights, duties or obligations thereunder. Sections 1.3, 2, 3, 6, 8.3, 8.4, 9, 10 and 11.1 shall survive any expiration or termination of this Agreement.
Each party (an “Indemnifying Party”) will indemnify, defend, and otherwise hold harmless the other party (the “Indemnified Party”), its officers, directors, employees, agents, and subsidiaries from and against any claim or suit brought by a third party against the Indemnified Party relating to, or resulting from, the Indemnifying Party’s breach or alleged breach of the Agreement or any of the Indemnifying Party’s representations and warranties hereunder or violation of a third party’s Intellectual Property Rights. The Indemnified Party will promptly notify the Indemnifying Party of any and all such claims and will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts the Indemnified Party in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement will require the Indemnified Party’s written consent (to be granted or withheld at the Indemnified Party’s sole discretion) and the Indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS HEREIN REGARDING CONFIDENTIAL INFORMATION, A BREACH OF SECTION 1.3 (RESTRICTIONS), OR IN CONNECTION WITH THE INDEMNIFICATION OF THIRD PARTY CLAIMS RELATING TO INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND (B) IN NO EVENT SHALL DARNELL DIGITAL SOFTWARE’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT OR YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE 12 MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
Unless otherwise specified in the attached Country Schedule, the Agreement and all matters arising out of or relating to the Agreement shall be governed by the laws of the State of California, without regard to any conflict of laws provisions that would apply the laws of an other jurisdiction; provided that the Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California. If You are outside of the United States, the parties agree that rights and obligations of the parties under the Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the courts located Houston. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
The waiver by either party of any default or breach of the Agreement shall be in writing and shall not constitute a waiver of any other or subsequent default or breach. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of Fees due) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, pandemics, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, the applicable export laws and regulations of the United States.
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
Neither party may assign this Agreement without prior written consent of the other party unless in connection with a merger, acquisition, or sale of all or substantially all of Darnell Digital’s or Your assets, and provided that the surviving entity has agreed to be bound by this Agreement. Notwithstanding the foregoing, Darnell Digital may assign this Agreement to any of its Affiliates without Your prior consent.
These Terms of Use together with each Order Form and any exhibits hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of the Agreement. In the event of any inconsistency between the applicable Order Form and these Terms of Use (or its exhibits), these Terms of Use (or its exhibits) shall control, unless the Order Form expressly states that such term supersedes the conflicting term of these Terms of Use.
Darnell Digital reserves the right to modify these Terms of Use at anytime. Modified Terms are in effect as soon as they are available to You online at the following link: https://darnell-digital.com/terms-of-use. Darnell Digital will update the Last Updated date at the top of this page if we modify these Terms of Use. You have 14 days after the Last Updated Date to contact Darnell Digital to terminate the Agreement if You disagree with the changes. After 14 days, all changes are binding for the remainder of the Term.
The parties agree that a breach by either party of any confidentiality or proprietary rights provision of these Terms of Use may cause that party irreparable damage, for which the award of damages may not be adequate compensation. Consequently, either party may institute an action seeking an injunction to enjoin any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
Unless specified otherwise in the Agreement, no third party shall have any rights or obligations under the Agreement.
The headings in these Terms of Use are for the convenience of reference only and have no legal effect.
Darnell Digital may give notice to You by e-mail to Your e-mail address on record in Darnell Digital’s account information. You may give notice to Darnell Digital by sending an email to legal@darnell-digital.com.
“Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or control with, a party; as used in this definition, the term “control” means the ownership of at least 50% of the equity of that entity or possessing the power to direct or cause the direction of the management of that entity.
“Aggregated Use Data” means data concerning the use, performance, and measurement data created by, or made available through the Subscription Services. These data may be related to or derived from Your use of the Subscription Services. Aggregated Use Data does not identify or permit identification of You, or Your customers, or contain Personal Data.
“Aggregated Subscriber Data” means aggregated Subscriber Data collected by Darnell Digital for the purpose of providing certain functionality within the the Subscription Services that is not directly accessible by, or identifiable to any other Darnell Digital customer.
“Agreement” means these Terms of Use, any exhibits attached hereto, any amendments to these Terms of use, and any applicable Order Forms referencing these Terms of Use.
“Authorized User” means Your employees, consultants, contractors, customers, or agents that have (i) been assigned a Credential to access and use the Subscription Services, (ii) registered to access and use the Subscription Services, and (iii) agree to comply with the terms and conditions of the Agreement.
“Confidential Information” means any written, machine-reproducible and/or visual materials that are labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within 30 days after disclosure. Darnell Digital Confidential Information includes, without limitation, the Subscription Services and any software used for the provision of the Subscription Services, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on Darnell Digital’s website, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services.
“Cookie” means a text file that is set on a computer when the computer communicates with a server and is recovered by that server.
“Credentials” means the user identification and password to the Subscription Services delivered to You by Darnell Digital, or set by You via the Subscription Services.
“Documentation” means materials provided online via the Subscription Services in the help and training sections of the Subscription Services.
“Effective Date” means the date these Terms of Use are executed by both parties.
“Feedback” means voluntary comments and suggestions for improvements relating to the Subscription Services provided by You to Darnell Digital.
“Fees” means the charges specified in an Order Form.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, with respect to Darnell Digital, data generated by or otherwise derived from Your use of Subscription Services and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Order Form” means a Darnell Digital Subscription Services order form that specifies the Fees, configuration, subscription period, and other details of the Subscription Services to be provided by Darnell Digital to You.
“Personal Data” means any data related to an identified or identifiable individual natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to its physical, physiological, mental, economic, cultural or social identity.
“Publisher(s)” means one or more third parties, who provide You or Your Authorized Users with advertising services or other services that may be accessed via the Subscription Services.
“Subscriber Data” means any data that: (a) collects via Darnell Digital’s Cookies on Your properties, (b) Your proprietary data input by You or Your Authorized Users in the Subscription Services, (c) Your proprietary data received by the Subscription Services from Your Publishers, and (d) Subscriber Content that is stored or processed by the Subscription Services. Subscriber Data is deemed Your Confidential Information.
“Subscriber Content” means materials or advertisements created by or uploaded by Your Authorized Users into Darnell Digital Display or Darnell Digital Social for integration with Publisher Content.
“Subscription Services” means Darnell Digital’s hosted, online software application, accessible via web browser at the URL darnell-digital.com, www.socialmoov.com and any other URLs as Darnell Digital may designate from time-to-time and any optional third party services ordered by You and provided to You through Darnell Digital.
“Term” means the period specified in the Order Form(s).
“Viruses” means software viruses, works, Trojan horses, or other harmful computer codes, agents, scripts, files or programs.
This Exhibit A “Product Specific Terms” attaches to the Terms of Use and provides the product specific terms applicable to Your use and purchase of the Subscription Services as defined on the applicable Order Form(s).
Darnell DigitalOne Search (either the Enterprise or Professional editions) is a component of the Subscription Services that provides certain functionality subject to Your purchased configuration and services; (A) manage daily workflows across Your search Publishers, (B) assemble audience, revenue, and contextual data in a centralized location for analysis, (C) track monthly search budget to optimize toward defined key performance indicators, (D) access to Darnell Digital’s intelligent search bidding algorithms, and (E) use of Darnell Digital Tracking Pixel.
You acknowledge and agree that Darnell Digital will disclose certain Subscriber Data to Your Publishers for the purpose of providing the Darnell DigitalOne Search Services to You.
Darnell DigitalOne Social is a component of the Subscription Services, which facilitates the creation, exchange, and management by users of advertising content and advertising campaigns on certain social media platforms (as defined in the applicable Order Form). Darnell DigitalOne Social shares Subscriber Data and Subscriber Content with Your social media Publisher accounts through the standard API program of certain social media platforms.
The parties agree to comply with the applicable social media platform’s guidelines or applicable user policy or any such equivalent rules as are in force from time to time in the jurisdiction that You, or Your Authorized Users are using Darnell DigitalOne Social or as imposed during the Term. The parties obtain and maintain all necessary licenses, consents, and permissions necessary for the parties to perform their obligations under the Agreement. You are solely responsible for accessing the contents of Your accounts on Your social media platforms, and for entering into any transactions via the Darnell DigitalOne Social with Your social media platforms.
1. Darnell Digital Ascend is a componentof the Subscription Services that provides certain functionality subject toYour purchased configuration and services, which may include: (A) datacollection across Publishers; (B) cost, revenue, and contextual data in acentralized location for analysis; (C) budget tracking and forecasting tooptimize toward defined key performance indicators; (D) access to dashboardsand automated reporting distribution; (E) access to Darnell Digital’sintelligent bidding and budget management algorithms; (F) Use of Darnell Digital TrackingPixel; and (G) access to Insights.
You acknowledge and agree thatDarnell Digital will disclose certain Subscriber Data to Your Publishers for thepurpose of providing the Darnell Digital Ascend Services to You.
1. Darnell Digital Connect is acomponent of the Subscription Services that provides certain functionalitysubject to Your purchased configuration and services, which may include: (A)data collection across Publishers; (B) cost, revenue, and contextual data in acentralized location for analysis; (C) access to budget tracking andforecasting to optimize toward defined key performance indicators; (D) accessto dashboards and automated reporting distribution; (E) access to Darnell DigitalSoftware’s intelligent bidding and budget management algorithms in Previewmode; (F) Use of Darnell Digital Tracking Pixel; (G) access to Insights; and (H) dataaccess via BI Connect.
2. Disclosure to Publishers.
You acknowledge and agree thatDarnell Digital will disclose certain Subscriber Data to Your Publishers for thepurpose of providing the Darnell DigitalConnect Services to You.
1.1 Darnell Digital partners with third party services providers (such as Feedonomics (the “Data Services Provider(s)”) to provide certain services as part of the Subscription Services (the “Data Services”). The Data Services are provided by the Data Services Provider to provide individual product (SKU) data management and distribution to product marketing channels.
1.2 Access to Your Marketing Channels. The Data Services process certain elements of the Subscriber Data and transmit such data to various online marketing channels (e.g. Google Shopping, eBay), with which You maintain Your own accounts. To facilitate the transmission of processed Subscriber Data from the Data Services to these online marketing channels, You may be required to provide Your credentials with each of Your online marketing channels to the Data Services Providers.
1.1 the audiences information and other data services to be provided to the Subscriber in connection with Darnell DigitalOne Enhanced Social Audiences (the “Custom Segments”) will be created and provided by Experian Marketing Solutions, LLC or another third party unrelated to Darnell Digital (the “Audiences Provider”), which shall be solely responsible for the accuracy and completeness of the Custom Segments;
1.2 the Audiences Provider will not deliver the Custom Segments to Darnell Digital on behalf of the Subscriber, but will instead upload the Custom Segments directly to Subscriber’s Facebook account managed by Darnell Digital;
1.3 the Subscriber authorizes the Audiences Provider for partner access to Subscriber’s Facebook account in accordance with Facebook’s policies to upload the Custom Segments and authorizes the Audiences Provider and Darnell Digital to access and track usage from Subscriber’s Facebook account ID on Darnell Digital’s platform for invoicing purposes;
1.4 the Custom Segments may be used only in advertising campaigns in only a single Facebook account ID managed on Darnell Digital’s platform (to the extent that Custom Segments are used in multiple accounts, the fees will reflect such multiple account usage);
1.5 Darnell Digital may terminate any Darnell DigitalOne Enhanced Social Audiences services at any time upon notice to Subscriber, and upon any expiration or termination of any such services, Subscriber shall immediately cease all use of the applicable Custom Segments; and
1.6 Subscriber shall be responsible for ensuring that all use of the Custom Segments complies with Facebook’s policies.
The specific support and service levels purchased by You are described on Your current Order Form (the “Service and Support Level”). The tables below provide the details for each level of Service and Support Level You are eligible during the Term. Darnell Digital may provide additional support and services to You, in addition to the specific items in Your applicable Service and Support Level in its sole discretion, or for additional Fees.
| Darnell Digital Connect Support and Service Levels | |||
| Service Package | Professional Services | Training | Account Support |
| Standard | • Up to 2 hours of onboarding assistance. • Additional consultation hours are invoiced at fees of $250/hour. | • Training courses are available via self-paced online video content, In-App Guided Tours, and Darnell Digital University. • Unlimited Darnell Digital Certifications. | • Renewal Manager |
| Darnell Digital Ascend Support and Service Levels | |||
| Service Package | Professional Services | Training | Account Support |
| Standard | • 1 hour initial onboarding call. • Additional consultation hours are invoiced at fees of $250/hour. | • Training courses are available via self-paced online video content, In-App Guided Tours, and Darnell Digital University. • Unlimited Darnell Digital Certifications. | • Renewal Manager • 30 min bi-weekly check in call for the first 90 days of the initial term. • Additional consultation hours are invoiced at fees of $250/hour. |
| Direct Advertiser Support and Service Levels | |||
| Service Packages | Professional Services | Training | Account Support |
| Mid-market | •Unlimited Integration Projects from Darnell Digital Certified Integrations listed at https://darnell-digital.com/integrations • One Darnell Digital Social Revenue Integration: Publisher tracking. • Historical Search Revenue Data: 1 included, (must be included in the Order Form). | • Training courses are available via self-paced online video content, Darnell Digital Live programs, and Darnell Digital University. • Unlimited Darnell Digital Certifications. • Up to three hours of supplemental instructor-led online training sessions for each Darnell DigitalOne Search and Darnell DigitalOne Social during the first 120 days of the Initial Term. | • Renewal Manager. • Assigned Customer Engagement Manager during the onboarding phase (first 120 days of the Initial Term maximum). • Assigned Onboarding resource(s) during the onboarding of the Subscription Services. |
| Standard | • Unlimited Integration Projects from Darnell Digital Certified Integrations listed at https://darnell-digital.com/integrations. • Historical Search Revenue Data: 1 included, (must be included in the Order Form). • One Darnell Digital Social Revenue Integration: Publisher Tracking. • One Darnell Digital Social Integration equal to a Darnell Digital Search data source. • Additional Darnell Digital Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form). | • Training courses are available via self-paced online video content, Darnell Digital Live programs, and Darnell Digital University. • Unlimited Darnell Digital Certifications. • Up to three hours of supplemental instructor-led remote training sessions for each Darnell Digital Search and Darnell Digital Social during the first 120-days of the Initial Term. | • Assigned Customer Success Manager. • Assigned Customer Engagement resource for Darnell Digital Search. • Assigned Customer Engagement resource for Darnell Digital Social if Social Spend is greater than $100,000 monthly. • Assigned Onboarding resource(s) during the onboarding of the Subscription Services. |
| Advanced | • Unlimited Integration Projects from Darnell Digital Certified Integrations listed at https://darnell-digital.com/integrations. • Historical Search Revenue Data: 1 included, (must be included in the Order Form). • One Darnell Digital Social Revenue Integration: Publisher Tracking, • One Darnell Digital Social Integration equal to a Darnell Digital Search data source. • Additional Darnell Digital Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form). | • Training courses are available via self-paced online video content, Darnell Digital Live programs, and Darnell Digital University. • Unlimited Darnell Digital Certifications. • Up to three hours of supplemental instructor-led remote training sessions for each Darnell Digital Search and Darnell Digital Social during the first 120-days of the Initial Term. | • Assigned Customer Success Director. • Assigned onboarding resource(s) during the onboarding of the Subscription Services. • Assigned Customer Engagement resource for Darnell Digital Search. • Assigned Customer Engagement resource for Darnell Digital Social if Social Spend is greater than $100,000 monthly. • Assigned Onboarding resource(s) during the onboarding of the Subscription Services. |
| Premium | • Unlimited Integration Projects from Darnell Digital Certified Integrations listed at https://darnell-digital.com/integrations. • Historical Search Revenue Data: 1 included, (must be included in the Order Form). • One Darnell Digital Social Revenue Integration: Publisher Tracking, • One Darnell Digital Social Integration equal to a Darnell Digital Search data source. • Additional Darnell Digital Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form). | • Training courses are available via self-paced online video content, Darnell Digital Live programs, and Darnell Digital University. • Unlimited Darnell Digital Certifications. • Up to four hours of supplemental instructor-led remote training sessions for each Darnell Digital Search and Darnell Digital Social during the first 120-days of the Initial Term. | • Assigned Customer Success Director. • Assigned Customer Engagement resource for Darnell Digital Search. • Assigned Customer Engagement resource for Darnell Digital Social if Social Spend is greater than $100,000 monthly. • Assigned Onboarding resource(s) during the onboarding of the Subscription Services. |
| Independent Agency Support and Service Levels | |||
| Service Packages | Professional Services | Training | Account Support |
| Mid-market | • Unlimited Integration Projects from Darnell Digital Certified Integrations listed at https://darnell-digital.com/integrations • Unlimited self-service Integrations from the following: GA, Publisher Tracking, Standard Revenue Upload or Darnell Digital Tracker. • One Darnell Digital Social Revenue Integration: Publisher tracking. • Additional Integration Projects for an additional fee as defined in the Additional Products & Services Table of the Order Form. • Historical Search Revenue Data: 1 included, (must be included in the Order Form) | • Training courses are available via self-paced online video content, Darnell Digital Live programs, and Darnell Digital University. • Unlimited Darnell Digital Certifications. • Up to three hours of supplemental instructor-led online training sessions for each Darnell DigitalOne Search and Darnell DigitalOne Social during the first 120 days of the Initial Term. | • Renewal Manager. • Assigned Customer Engagement Manager during the onboarding phase (first 120 days of the Initial Term maximum). • Assigned Onboarding resource(s) during the onboarding of the Subscription Services. |
| Standard | • Unlimited Integration Projects from Darnell Digital Certified Integrations listed at https://darnell-digital.com/integrations • Unlimited self-service Certified Integrations. • Additional Integration Projects for an additional fee as defined in the Additional Products & Services Table of the Order Form. • Historical Search Revenue Data: 1 included, (must be included in the Order Form).• One Darnell Digital Social Revenue Integration: Publisher Tracking. • One Darnell Digital Social Integration equal to a Darnell Digital Search data source. • Additional Darnell Digital Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form). | • Training courses are available via self-paced online video content, Darnell Digital Live programs, and Darnell Digital University. • Unlimited Darnell Digital Certifications. • Up to three hours of supplemental instructor-led remote training sessions for each Darnell Digital Search and Darnell Digital Social during the first 120-days of the Initial Term. | • Assigned Customer Success Manager for the account. • Assigned Customer Engagement resource for the first 120 days of the Initial Term. • Assigned Onboarding resource(s) during the onboarding of the Subscription Services. |
| Advanced | Unlimited Integration Projects from Darnell Digital Certified Integrations listed at https://darnell-digital.com/integrations. • Unlimited self-service Certified Integrations. • Additional Integration Projects for an additional fee as defined in the Additional Products & Services Table of the Order Form. • Historical Search Revenue Data: 1 included, (must be included in the Order Form). • One Darnell Digital Social Revenue Integration: Publisher Tracking, • One Darnell Digital Social Integration equal to a Darnell Digital Search data source. • Additional Darnell Digital Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form). | • Training courses are available via self-paced online video content, Darnell Digital Live programs, and Darnell Digital University. • Unlimited Darnell Digital Certifications. • Up to four hours of supplemental instructor-led remote training sessions for each Darnell Digital Search and Darnell Digital Social during the first 120-days of the Initial Term. | • Assigned Customer Success Director. • Assigned onboarding resource(s) during the onboarding of the Subscription Services. • Assigned Customer Engagement resource for Darnell Digital Search. • Assigned Customer Engagement resource for Darnell Digital Social if Social Spend is greater than $100,000 monthly. |
| Premium | Unlimited Integration Projects from Darnell Digital Certified Integrations listed at https://darnell-digital.com/integrations. • Unlimited self-service Certified Integrations. • Additional Integration Projects for an additional fee as defined in the Additional Products & Services Table of the Order Form. • Historical Search Revenue Data: 1 included, (must be included in the Order Form). • One Darnell Digital Social Revenue Integration: Publisher Tracking, • One Darnell Digital Social Integration equal to a Darnell Digital Search data source. • Additional Darnell Digital Social Revenue Integrations for an additional Fee (custom scoped on separate Order Form). | • Training courses are available via self-paced online video content, Darnell Digital Live programs, and Darnell Digital University. • Unlimited Darnell Digital Certifications. • Up to four hours of supplemental instructor-led remote training sessions for each Darnell Digital Search and Darnell Digital Social during the first 120-days of the Initial Term. | • Assigned Customer Success Director. • Assigned Customer Engagement resource for Darnell Digital Search. • Assigned Customer Engagement resource for Darnell Digital Social if Social Spend is greater than $100,000 monthly. • Assigned Onboarding resource(s) during the onboarding of the Subscription Services. |
| Support & Services for Darnell Digital Social – Expert Solutions | |||
| Service Packages | Professional Services | Communication Frequency | Account Support |
| Essentials | Darnell Digital will manage the Subscriber’s social media campaigns on Facebook, Twitter, or both working toward Subscriber’s business goals which include the following: • Audience creation including: age/gender/geography combinations, interest clusters, lookalikes/WCA/CRM-based custom audiences, inclusions/exclusions. • Ad creation and management (excluding ad copy and image creation). • One weekly performance report using dashboards based on Subscriber’s Key Performance Indicators. • Optimization on all active ads including bidding (CPM, dynamic bidding, manual bidding), audience optimization (adding/removing parts of an existing audience), custom audience exclusions, pausing ads or resuming ads, budget management). | • One bi-weekly meeting over conference call or web meeting to review campaign performance and upcoming campaign launches. • One weekly update over email to recap any new work or optimization completed. • Subscriber will be provided an email alias to communicate with their assigned Darnell Digital social media team as well as a phone number for emergency requests outside of business hours. | • Subscriber is provided with an email alias to use to contact Subscriber’s assigned team of experts at Darnell Digital. • An after hour emergency is defined as an urgent request to pause all or part of the Subscriber’s campaigns due to unforeseen events out of the Subscriber’s or Darnell Digital’s control. • Darnell Digital will charge Subscriber at a rate of $400 per hour, per resource that Darnell Digital deploys for after-business hour requests. |
| Advanced | Darnell Digital will manage the Subscriber’s social media campaigns on Facebook, TikTok, Snap Chat, working toward Subscriber’s business goals which include the following: • Audience creation including: age/gender/geography combinations, interest clusters, lookalikes/WCA/CRM-based custom audiences, inclusions/exclusions. • Ad creation and management (excluding ad copy and image creation). • One weekly performance report using dashboards based on Subscriber’s Key Performance Indicators. • Monthly and/or Quarterly Reports customized for internal Report Templates • Intraday Reports provided via email for key promotional days. Clients must make Darnell Digital aware of promotional days 10 business days in advance. • Optimization on all active ads including bidding (CPM, dynamic bidding, manual bidding), audience optimization (adding/removing parts of an existing audience), custom audience exclusions, pausing ads or resuming ads, budget re-allocation). • Darnell Digital Tracker Google Tag Manager Setup • Dynamic Campaign builds and optimization (including Meta Advantage Suite products) • Monthly budget recommendations | • One weekly meeting over conference call or web meeting to review campaign performance and upcoming campaign launches. • One weekly update over email to recap any new work or optimization completed. • Subscriber will be provided an email alias to communicate with their assigned Darnell Digital social media team as well as a phone number for emergency requests outside of business hours. | • Assigned Customer Success Manager for the account. • Assigned Customer Engagement resource for the first 120 days of the Initial Term. • Assigned Onboarding resource(s) during the onboarding of the Subscription Services. |
| Requirements & Dependencies | • Three months minimum Term. • Subscriber provides credit line and/or funding source for all campaigns on all social publishers. • Publisher accounts are funded with credit line or insertion order and in good standing with the Publisher. • Subscriber provides objective details for new campaigns and all assets at least one business day prior to each campaign’s launch. • Darnell Digital will only launch new campaigns beginning on Monday through close of business on Thursday Pacific Time Zone • Subscriber’s assigned Customer Engagement resource will handle all the implementation and optimization work. • Facebook conversion tracking and Website custom audience pixels must be in place on conversion pages. • Twitter conversion tracking and audience remarketing pixels must be in place on conversion pages. • All pages Subscriber wants to advertise from are linked to business manager. • Subscriber must provide all images and video and Ad copy assets to Darnell Digital for advertisement creation. • Subscriber is responsible for providing Darnell Digital with landing page assets for ads. • Subscriber’s business manager account is set up, publisher conversion pixels (Facebook and/or Twitter) are deployed and verified, retargeting pixels are deployed and verified (website custom audience and/or Twitter website tag for remarketing. • CRM Custom audience upload/refresh at least 1 time per month • If Subscriber is an agency, the scope of services and pricing applies to one advertiser and not all advertisers of the agency. | ||
| Support & Services for Darnell Digital eCommerce – Expert Solutions | |||
| Service Packages | Professional Services | Communication Frequency | Account Support |
| Essentials | Darnell Digital will manage the Subscriber’s paid eCommerce campaigns on Amazon, Criteo Retail Media, Instacart, Citrus Ads, working toward Subscriber’s business goals which include the following: • Configure and optimize ad targets, create feed-based ads, launch text ads with customer provided ad copy • Keyword & Product Target management and creation • Negative Keyword management and creation • Optimization on all active campaigns including bidding, if applicable • Weekly performance report using dashboards based on Subscriber’s Key Performance Indicators | • One bi-Weekly meeting over conference call or web meeting to review campaign performance and upcoming campaign launches • Subscriber will be provided an email alias to communicate with their assigned Darnell Digital search customer engagement team as well as a phone number for emergency requests outside of business hours | • Subscriber is provided with an email alias to use to contact Subscriber’s assigned team of experts at Darnell Digital as well as a phone number for after-hours emergencies • An after hour emergency is defined as an urgent request to pause all or part of the Subscriber’s campaigns due to unforeseen events out of the Subscriber’s or Darnell Digital’s control • Darnell Digital will charge Subscriber at a rate of $400 per hour, per resource that Darnell Digital deploys for after-business hour requests |
| Advanced | Darnell Digital will manage the Subscriber’s paid eCommerce campaigns on Amazon, Criteo Retail Media, Instacard, and Citrus Ads, working toward Subscriber’s business goals which include the following: • Configure and optimize ad targets, create feed-based ads, launch text ads with customer provided ad copy • Keyword & Product Target management and creation • Negative Keyword management and creation • Optimization on all active campaigns including bidding, if applicable • Weekly performance report using dashboards based on Subscriber’s Key Performance Indicators • Monthly and/or quarterly reports customized to Subscribers internal reports templates • Intraday reports provided via email for key promotional days. Subscriber must make Darnell Digital aware of promotional days 10 business days in advance • Darnell Digital Tracker deployment via Google Tag manager • Dynamic campaign management • Monthly budget recommendations | • One weekly meeting over conference call or web meeting to review campaign performance and upcoming campaign launches • Subscriber will be provided an email alias to communicate with their assigned Darnell Digital search customer engagement team as well as a phone number for emergency requests outside of business hours | • Subscriber is provided with an email alias to use to contact Subscriber’s assigned team of experts at Darnell Digital as well as a phone number for after-hours emergencies • An after hour emergency is defined as an urgent request to pause all or part of the Subscriber’s campaigns due to unforeseen events out of the Subscriber’s or Darnell Digital’s control • Darnell Digital will charge Subscriber at a rate of $400 per hour, per resource that Darnell Digital deploys for after-business hour requests |
| Requirements & Dependencies | • Subscriber provides credit line and/or funding source for all campaigns on all search publishers • Publisher accounts are funded with credit line or insertion order and in good standing • Darnell Digital will only launch new campaigns beginning on Monday through close of business on Thursday Pacific Time Zone • Subscriber agrees not to make any changes to Darnell Digital campaigns without alignment with Customer Engagement Manager • Darnell Digital language requirements limited to English | ||
| Support & Services for Darnell Digital Search – Expert Solutions | |||
| Service Packages | Professional Services | Communication Frequency | Account Support |
| Essentials | Darnell Digital will manage the Subscriber’s paid Search campaigns on Google and Bing, working toward Subscriber’s business goals which include the following: • Configure and optimize ad targets, create feed-based ads, launch text ads with customer provided ad copy • Keyword & Product Target management and creation • Negative Keyword management and creation • Optimization on all active campaigns including bidding, if applicable • Weekly performance report using dashboards based on Subscriber’s Key Performance Indicators | • Bi-weekly meetings, over conference call or web meeting, to review campaign performance and upcoming campaign launches • Subscriber will be provided an email alias to communicate with their assigned Darnell Digital search customer engagement team as well as a phone number for emergency requests outside of business hours | • Subscriber is provided with an email alias to use to contact Subscriber’s assigned team of experts at Darnell Digital as well as a phone number for after-hours emergencies • An after hour emergency is defined as an urgent request to pause all or part of the Subscriber’s campaigns due to unforeseen events out of the Subscriber’s or Darnell Digital’s control • Darnell Digital will charge Subscriber at a rate of $400 per hour, per resource that Darnell Digital deploys for after-business hour requests |
| Advanced | Darnell Digital will manage the Subscriber’s paid Search campaigns on Google and Bing, working toward Subscriber’s business goals which include the following: • Configure and optimize ad targets, create feed-based ads, launch text ads with customer provided ad copy • Keyword & Product Target management and creation • Negative Keyword management and creation • Optimization on all active campaigns including bidding, if applicable • Weekly performance report using dashboards based on Subscriber’s Key Performance Indicators • Monthly and/or quarterly reports customized to Subscribers internal reports templates • Intraday reports provided via email for key promotional days. Subscriber must make Darnell Digital aware of promotional days 10 business days in advance • Darnell Digital Tracker deployment via Google Tag manager • Dynamic campaign management • Monthly budget recommendations • Copywriting & Ad Content Creation available to Subscriber at a rate of $250 per hour | • One weekly meeting over conference call or web meeting to review campaign performance and upcoming campaign launches • Subscriber will be provided an email alias to communicate with their assigned Darnell Digital search customer engagement team as well as a phone number for emergency requests outside of business hours | • Subscriber is provided with an email alias to use to contact Subscriber’s assigned team of experts at Darnell Digital as well as a phone number for after-hours emergencies • An after hour emergency is defined as an urgent request to pause all or part of the Subscriber’s campaigns due to unforeseen events out of the Subscriber’s or Darnell Digital’s control • Darnell Digital will charge Subscriber at a rate of $400 per hour, per resource that Darnell Digital deploys for after-business hour requests |
| Requirements & Dependencies | • Subscriber provides credit line and/or funding source for all campaigns on all search publishers • Publisher accounts are funded with credit line or insertion order and in good standing • Darnell Digital will only launch new campaigns beginning on Monday through close of business on Thursday Pacific Time Zone • Subscriber agrees not to make any changes to Darnell Digital campaigns without alignment with Customer Engagement Manager • Darnell Digital language requirements limited to English | ||
Ad Impression Served – means Subscribers Linked Impressions as reported by the Publisher(s).
Amazon Spend – means Subscriber’s Linked advertising spend from Amazon.
BI Connect – Enables Darnell Digital Search clients to warehouse their online advertising data for analysis in Business Intelligence tools outside of the Subscription Services. By purchasing BI Connect, Subscriber consents to Darnell Digital’s sharing of Subscriber’s Subscriber Data with such third party via BI Connect.
Channel Connect – Integrations to Darnell Digital Search from third-party Publishers and other channels that may be subject to setup fees.
Copywriting & Ad Content Creation – means the creation, composition or development of ad text or other content used in online advertisements.
Conversion Event Types – Discrete categories of user actions that can be captured and reported as conversions. Examples include leads, email captures, newsletter sign-ups, phone calls, price quotes, orders, etc. By configuring Conversion Events Types account administrators can assign how much credit each event is worth in a multi-step customer path.
Data Management Platform – Audience Connect technology and services that enable data collection, management, sharing and analytics on behalf of Subscriber’s first party data.
Data Passback – A nightly file transfer that enables Darnell Digital Search clients to warehouse their online advertising data for analysis outside of the Subscription Services. If Subscriber engages Darnell Digital’s Data Passback service that integrates with a third party, by purchasing Data Passback, Subscriber consents to Darnell Digital’s sharing of Subscriber’s Subscriber Data with such third party via Data Passback.
Data Source(s) – Means an individual account with a Publisher, Technology Partner or instance of Standard Revenue Upload.
Dynamic Campaigns – This service provides transformation of product feed data into Darnell Digital-ready format and creation logic that is used to dynamically generate search and product advertising campaigns on Google and Bing.
Feed Engine (Darnell DigitalOne Social) – Stand-alone offering that provides client-specific tailored development in order to automate the creation at scale of customized ads with specific targeting and processed dynamically from pre-defined internal and external data sources.
Feed Optimization Services/Smart Feed (Darnell DigitalOne Search & Social) – A stand-alone managed services offering that provides transformation of Subscriber’s product feed data to Darnell Digital application-ready format that can be leveraged by included functionality and supported publishers for Darnell Digital Search (bidding changes or creative updates), Darnell Digital Social (Facebook Dynamic Product Ads) and Darnell Digital Display (web and mobile retargeting).
Historical Data – Subscriber’s historical data that may be uploaded, provided that those data meets Darnell Digital Search standard revenue upload format.
Integration(s) – a data source that feeds data into the Subscription Services originating from a third-party. Custom Integrations are available for additional fee.
Integration Project – a professional service project where a Darnell Digital technical resource provides services to connect a Darnell Digital Certified Integration into the Subscription Services for Subscriber. This includes any requested re-Integration project(s).
Objects – The number of unique combinations of keywords, placements, match types, and ads across Darnell Digital Client Accounts.
Linked, or Link – means the act of linking Publisher, Technology Partner, or revenue accounts into the Subscription Services.
Darnell Digital Certifications – Subscriber will have access to the following certifications: “Darnell Digital Search”, “Darnell Digital Social” and “Darnell Digital Integration”. Each certification is entirely on-demand and Subscriber has unlimited opportunities to take it.
Darnell Digital Certified Integration(s) – an Integration that connects to the Subscription Services originating from a Technology Partner and/or Media Partner (listed here) or from Darnell Digital Tracker, or standard Revenue Upload.
Darnell Digital Client Accounts – The number of instances of client accounts in Darnell Digital Search or Darnell Digital Social that Subscriber chooses to deploy typically by brand, business unit, or advertiser. Darnell Digital Client Accounts are integrated into an aggregated view of a single account in Darnell Digital Search, Darnell DigitalOne, and/or Darnell Digital Social.
Darnell Digital Connect Partners – Darnell Digital Connect Partners are the technology partners described here under the section titled “Technology Partners”.
Darnell Digital Platform – means components of the Subscription Services namely Darnell Digital Search, Darnell Digital Social, and Darnell DigitalOne.
Darnell DigitalOne Enhanced Social Audiences – Audiences information and other data services provided to the Subscriber for Custom Segments created and provided by Experian Marketing Solutions, LLC or another third party unrelated to Darnell Digital.
Platform Fee and Minimum Monthly Fee – The minimum monthly Fee for the Subscription Services as described on the applicable Order Form. The terms “Platform Fee” and “Minimum Monthly Fee” carry the same meaning.
Preview – means Darnell Digital will calculate and display values in a grid, but will not push data to Publishers.
Revenue Integration – Supported Integrations to Darnell Digital Search and Darnell Digital Social from third-party revenue tracking and analytics applications.
Search Spend – All Linked advertising spend on Google, Bing, Yahoo Japan, Apple Search Ads, Baidu, Yandex, Capterra and other search platforms Linked in the Subscription Services.
Social Spend – All Linked advertising spend on Facebook, Instagram, TikTok, Snapchat, Pinterest, Twitter, Linkedin, Quora, Reddit, Yelp and other social media platforms Linked in the Subscription Services.
Display & Video Spend – All Linked advertising spend on Yahoo Display, Amazon Display, Criteo Display, Taboola, Mediamath, Basis, Outbrain, Spotify, The Trade Desk, Xandr, TripAdvisor, Adroll, Kayak and other display or video media platforms Linked in the Subscription Services.
Retail Spend – All Linked spend on Amazon, WalmartConnect, Instacart, Citrus Ads, Criteo Retail Media Network and other retail or e-commerce media platforms Linked in the Subscription Services.
Total Publisher Spend – The total of all Search Spend, Social Spend, Display Spend and Retail Spend.
Standard Revenue Upload – Subscribers that wish to use revenue upload from a non-certified integration partner or from an internal data warehouse system, must have the ability to parse, and report on performance against specific parameters contained in the query strings of your keyword or creative destination URLs.
Scripts – Darnell DigitalOne Scripts allow you to leverage the power of Python for streamlined reporting, management, and optimization to boost performance and save time. Scripts can run across the wide range of publishers supported by Darnell DigitalOne.
Meta Rules – Rules allow you to input specific criteria that can execute actions to your ads based on number of clicks, time, or amount of money spent.
Message Booster – Message Booster is a dedicated social media management tool aimed at streamlining Community Management (CM) processes and paid media content promotion. Message Booster enables advertisers to automatically promote posts based on engagement metrics and post content to increase the reach and the impact of their social media messaging.
This Exhibit B “Country Schedule” attaches to the Terms of Use and provides terms specifically applicable to Your governing country. If there is a conflict between the Terms of Use and this Country Schedule, this Country Schedule provisions will control regarding the specific provisions listed in under the applicable country designation. The law that is applicable to the Agreement and the courts that have exclusive jurisdiction in relation to any dispute or matter arising out of connected with the Agreement depends upon the entity listed in the signature block of the Terms of Use.
Subscription Services provided by: Darnell Digital Incorporated
Law governing the Agreement: Irish law
Courts having exclusive jurisdiction for disputes: Dublin, Ireland
The parties agree that the Darnell Digital Data Processing Addendum (available at Darnell Digital Data Processing Addendum (PDF).) is incorporated and made a part of the Agreement and shall apply with respect to the parties processing of Personal Data attaching to residents of the European Union and the United Kingdom.
Subscription Services provided by: Darnell Digital Incorporated
Law governing the Agreement: Japanese law
Courts having exclusive jurisdiction for disputes: Tokyo, Japan
Subscription Services provided by: Darnell Digital Incorporated
Law governing the Agreement: Germany
Courts having exclusive jurisdiction for disputes: Munich, Germany
The parties agree that the Darnell Digital Data Processing Addendum (available at Darnell Digital Data Processing Addendum (PDF).) is incorporated and made a part of the Agreement and shall apply with respect to the parties processing of Personal Data attaching to residents of the European Union and the United Kingdom.
Darnell Digital warrants that during the Term of the Agreement (A) the Subscription Services shall perform materially in accordance with the description of the Subscription Services in Darnell Digital’s Online Help website at the time when entering into this Agreement, and (B) the Subscription Services will not contain or transmit to You any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. Darnell Digital reserves the right to update or change the description of the Subscription Services in Darnell Digital’s Online Help website and thus the functionality of the Subscription Services from time to time by giving notice to You in writing or by e-mail. You can reject such changes in writing within one month after receipt of the notification. If You do not reject in time, the changes will become effective. Darnell Digital shall explicitly inform You of this legal consequence together with the notification of the change.
You must inform Darnell Digital immediately of any discernible defect of the Subscription Services which occurs during the Term of the Agreement.
(A) Darnell Digital shall have no warranty and liability for defects of the Subscription Services which have already been existent at the commencement of this Agreement in case that Darnell Digital is not accountable for such defect.
(B) Darnell Digital shall have no warranty and liability for any claims, losses, or damage caused by errors or omissions in any information provided to Darnell Digital by You, including, without limitation, Subscriber Data, in connection with the Subscription Services or any actions taken by Darnell Digital at Your direction.
(C) Darnell Digital shall have no warranty and liability for any claims, losses or damages arising out of or in connection with the use by You or by any Authorized User of any third-party products, services, software or websites that are accessed via links from within the Subscription Services outside the sphere of responsibility of Darnell Digital.
(D) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, DARNELL DIGITAL SOFTWARE DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE AVAILABLE AND UNINTERRUPTED AT ALL TIMES. DARNELL DIGITAL SOFTWARE FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DARNELL DIGITAL SOFTWARE OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
You must not remedy any defects of the Subscription Services by yourself or by engaging a third party and you may not claim from Darnell Digital a reimbursement of any resultant expenses.
Any claims for damages or for compensation for expenses under warranty shall be subject to Section 9 (Limitation of Liability).
REGARDLESS OF THE LEGAL GROUNDS, IF SUCH DAMAGE WAS CAUSED WITH INTENT OR GROSS NEGLIGENCE OR WAS CULPABLY CAUSED BY DARNELL DIGITAL SOFTWARE IN CONNECTION WITH A VIOLATION OF LIFE, BODY OR HEALTH, OR IN CASE OF NON-COMPLIANCE WITH A GUARANTEE, OR IF A DEFECT WAS FRAUDULENTLY CONCEALED BY DARNELL DIGITAL SOFTWARE.
(B) DARNELL DIGITAL SOFTWARE SHALL ALSO BE LIABLE IN THE CASE OF A CULPABLE VIOLATION OF AN ESSENTIAL CONTRACTUAL OBLIGATION OR CARDINAL DUTY, HOWEVER, IN THE EVENT OF AN ESSENTIAL CONTRACTUAL OBLIGATION OR CARDINAL DUTY VIOLATED BY SIMPLE NEGLIGENCE, DARNELL DIGITAL SOFTWARE’S LIABILITY SHALL BE LIMITED TO THE TYPICALLY FORESEEABLE DAMAGE. A “CARDINAL DUTY” IN THE SENSE OF THIS PROVISION SHALL BE A DUTY OF DARNELL DIGITAL SOFTWARE WHOSE FULFILLMENT ENABLES THE PROPER PERFORMANCE OF THE AGREEMENT, WHOSE INFRINGEMENT JEOPARDIZES ACHIEVING THE PURPOSE OF THE AGREEMENT AND IN WHOSE COMPLIANCE YOU NORMALLY TRUST.
(C) IN THE EVENT OF ANY DAMAGE CAUSED BY GROSS NEGLIGENCE OF DARNELL DIGITAL SOFTWARE’S SIMPLE VICARIOUS AGENTS, DARNELL DIGITAL SOFTWARE’S LIABILITY SHALL BE LIMITED TO THE TYPICALLY FORESEEABLE DAMAGE.
DARNELL DIGITAL SOFTWARE’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES SHALL NOT EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE 12 MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
LIABILITY UNDER THE GERMAN PRODUCT LIABILITY ACT SHALL REMAIN UNAFFECTED.