Advertising Services Terms and Conditions

CARDLYTICS UK LIMITED, with registered company number 08058278 and whose registered office is at 10 York Road, London SE1 7ND (“Cardlytics”)

1. Application of these terms
These terms and conditions together with any Campaign Series Booking Form (a) apply, unless stated otherwise, to all contracts between Cardlytics and the Advertiser for the supply of Services; and (b) are subject to any conditions specified in the Campaign Series Booking Form which will take precedence over these Terms and Conditions. Words defined in the attached Campaign Series Booking Form have the same meanings in these terms. In these terms and conditions: “Advert” means an advertisement, cashback offer, or other marketing communication distributed through digital channels (including online and mobile banking) to a Consumer in accordance with the Campaign Series Booking Form;“Activation” means a Consumer clicking on the cashback offer to make such Consumer eligible to receive the benefit of such cashback offer, and “Activated” shall be construed accordingly;“Applicable Transaction” means a transaction by a Consumer at the Advertiser made: (i) following receipt and Activation of an Advert; (ii) in accordance with the terms and conditions of such Advert; and (iii) using a payment card linked to the Consumer’s Financial Partner account, “Campaign Analysis” means any analysis, report, or other output produced by Cardlytics for Advertiser as part of the Services;“Campaign Series Booking Form” means any Campaign Series Booking Form agreed to between the parties detailing the services to be provided by Cardlytics, the timings and the service charges;“Consumer” means a Financial Partner’s customer;“Contribution” means any content, information, or requests provided by Advertiser in connection with Cardlytics producing an Advert;“Fees” means the amounts to be paid by Advertiser to Cardlytics for the Services as specified in the Campaign Series Booking Form;“Financial Partner” means Cardlytics’ financial institution and other publishing partners who participate in Cardlytics marketing network;"Losses" means any losses, liabilities, damages, costs, awards, fines, penalties, sanctions, amounts paid in settlement and expenses (including reasonable legal fees and disbursements for external counsel, and reasonable costs of investigation, litigation and settlement);“Services” means the provision of Adverts to be placed on Financial Partner’s digital channels (including online and mobile banking) based on the banking behaviour of Consumers as further set out in any Campaign Series Booking Form and any associated Campaign Analysis.

2. Services
2.1 Cardlytics will provide the Services with reasonable skill and care and in the time period agreed in writing by Cardlytics and Advertiser.

2.2 A Campaign Series Booking Form shall be approved by Advertiser upon email confirmation and such Campaign Series Booking Form shall be subject to these terms and conditions.

2.3 Advertiser agrees and acknowledges that a Financial Partner may suspend or terminate any Advert campaign at any time in which case Advertiser shall, in respect of Adverts issued or to be issued to such Financial Partner’s customers, only be required to pay Cardlytics the agreed Fees for Adverts up until the date on which any Advert campaign is suspended or terminated. Cardlytics and Financial Partners shall not otherwise have any liability to Advertiser for such suspension or termination.

2.4 For each Advert campaign, Cardlytics shall make available reporting (at least on a monthly basis), informing Advertiser: (a) the number of Consumers who have been Presented with the Advert; (b) the number of Applicable Transactions; and (c) the total aggregate sales amount of all Applicable Transactions.

3. Editorial Processes For Adverts
3.1 Advertiser shall provide Cardlytics with any Contribution, including Advertiser’s logo, in sufficient time for Cardlytics to undertake the Services. Advertiser shall further provide Cardlytics with any information reasonably requested by Cardlytics for purposes of targeting Cardlytics shall have no liability for any delays in the provision of Services which results from any delay on the part of Advertiser.  Advertiser warrants that Cardlytics’ use of the Contribution will not infringe the rights of any third party.

3.2 Advertiser warrants that any Contribution supplied for inclusion in a Advert or approved by Advertiser shall be true and accurate, shall comply with all laws, regulations, standards determined by any governmental or regulatory authority and generally applicable industry or self-regulatory standards (including without limitation the British Code of Advertising, Sales Promotion and Direct Marketing and codes of practice of the Direct Marketing Association), and shall not infringe any third party rights (including intellectual property rights).

3.3 Cardlytics shall have no obligation to display any Advert until such time that Cardlytics approves such content.

4. Charges and Payment
4.1 The fees payable by the Advertiser to Cardlytics in respect of a month shall be;
        a. an amount equal to the total value of cashback discounts specified in any Adverts which have resulted in an Applicable Transaction in such month (the “Consumer Discount”); plus
        b. n respect of the Services, an amount equal to an agreed percentage of the transaction value of all Applicable Transactions in such month (the “Transaction Fee”).

Consumer Discounts and Transactions Fees are agreed for each campaign series and recorded in the Campaign Series Booking Form.

In respect of the Consumer Discount Cardlytics and the Financial Partner are merely acting as the Advertiser’s agents in facilitating the payment of monies owed by the Advertiser to the Consumer and neither Cardlytics nor the Financial Partner are entitled to that sum.

4.2 Cardlytics shall:
       a. in respect of the Consumer Discount for financial institution partners, make a non-vatable request for payment; and
       b. in respect of the Consumer Discount for other publishing partners and Transaction Fee, send a vatable invoice to the Advertiser on a monthly basis and the Advertiser shall pay Cardlytics within 30 days from the date of invoice/ request for payment (as applicable).

4.3 Unless otherwise specified in this Agreement, all amounts set out in this Agreement are exclusive of any VAT and all other taxes and statutory charges which will be set out in an invoice and charged to the Advertiser in addition to any fees payable by the Advertiser under this Agreement.  The Advertiser shall pay such taxes and charges within 30 days from the date of invoice.

4.4 The Advertiser acknowledges that all fees and reporting will be calculated based on information provided via Cardlytics’ Financial Partners.

5. Operational and Other Matters
5.1 Cardlytics and Financial Partners shall have no liability for any goods or services sold or made available to Consumers by an Advertiser, such liability being assumed by Advertiser.

5.2 Advertiser shall indemnify and keep indemnified Cardlytics against any and all Losses suffered by Cardlytics arising in connection with, or resulting from, Advertiser’s breach of this Agreement

6. IP, Data, Systems and Reports
6.1 Advertiser and Cardlytics shall comply with all relevant provisions of the Data Protection Act 2018 (as amended or replaced) and all subsidiary legislation and all applicable codes of practice.

6.2 Cardlytics agrees that all intellectual property rights in the Campaign Analysis shall be vested in Advertiser as soon as Advertiser pays the Fees.

6.3 Advertiser grants to Cardlytics for the duration of this Agreement a royalty free, non-exclusive licence to use the Contribution, including Advertiser’s logo, for the purposes of (i) the Services and (ii) any promotional materials issued by Cardlytics and/or the Financial Partners related to the Services

7. Term and Termination
7.1 his Agreement shall start on the date of signature and, subject to clause 7.2, shall continue in force until terminated by either party giving to the other party notice in writing of termination to expire the later of three months from the receipt of the notice of termination or the completion of any Services detailed in any Campaign Series Booking Form agreed prior to the notice of termination.

7.2 Either party may terminate this Agreement by 30 days written notice if: (a) the other commits a material breach of this Agreement and such breach (if capable of remedy) is not remedied within 30 days of written notice to do so; or (b) the other takes, or there are taken in respect of it, any step, action, application or proceeding in relation to the whole or any part of its undertaking for a voluntary arrangement or composition or reconstruction of its debts or its winding-up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if any equivalent step or proceeding is taken in any relevant jurisdiction.

7.3 Rights and obligations accrued at termination or expiry of this Agreement shall not be affected by such termination or expiry. Any provisions of this Agreement intended to apply after termination or expiry shall survive termination or expiry.

8. Liability and Entire Agreement
8.1 Neither party shall be under any liability (whether in tort, contract or otherwise) to the other for damages for (a) failure to achieve incremental revenue or business or failure to increase market share as a result of the Services and/or (b) consequential, contingent or indirect damages resulting from any breach of this Agreement. Nothing in this Agreement shall exclude or restrict a party's rights or remedies in respect of any indemnities set out in this agreement, any fraud, any claim for death or personal injury caused by the other party's negligence or any other liability which cannot be limited or excluded at law.  In no circumstances shall either party’s maximum aggregate liability to the other party under this Agreement exceed the Fees paid by Advertiser under this Agreement.

8.2 This is the entire agreement between the parties in relation to its subject matter and supersedes any previous agreement between the parties in relation to such matters. All implied warranties, terms and conditions not expressly set out in this Agreement are excluded to the greatest extent permissible by law. No variation of this Agreement shall be effective unless in writing signed by each party.

9. Miscellaneous
9.1 Each party shall keep any information supplied to it by the other which is not publicly available, together with the existence and content of this Agreement, strictly private and confidential and will not without the other's prior written consent disclose or permit disclosure of all or part of that information to anyone else unless required to comply with law, save that Cardlytics may disclose any information to Financial Partners to enable it to perform the Services.  Such information will not be used for any purpose other than to perform the obligations under this Agreement.  Cardlytics may disclose the existence and content of this Agreement and Advertiser’s confidential information to its sub-contractors or group companies, provided that it shall ensure that such sub-contractors or group companies comply with obligations of confidentiality corresponding to those which bind Cardlytics in accordance with this clause.

9.2 Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control.  In such event the affected party shall give notice in writing to the other as soon as reasonably practicable and shall use all reasonable endeavours to mitigate the effect and to perform its obligations in a similar way wherever possible.

9.3 Any reference to a party includes its successors and assigns.  Cardlytics may subcontract its rights or obligations under this Agreement without the need for Advertiser’s prior written consent.  Neither party may otherwise assign, subcontract or transfer its rights or obligations under this Agreement without the prior written consent of the other, save that either party may assign or transfer this Agreement or any of its rights and / or obligations under it to any group company from time to time, to any entity to whom it may sell all or substantially all of its business or assets or any entity into which its assets or business may be merged or consolidated.

9.4 This Agreement does not create a partnership or (save as specified) agency between the parties. Save as expressly provided, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

9.5 If any provision of this Agreement is held invalid or unenforceable, that provision will be enforced to the maximum extent permitted by law and the remaining provisions will remain in full force.

9.6 Any notice shall be in writing and shall be served if delivered personally or sent by pre-paid post to the address of the respective party set out above or other contact address provided for this purpose in accordance with this clause, or by facsimile to such facsimile number as the addressee may have specified for this purpose.

9.7 This Agreement shall be governed by English law and the English courts shall have the exclusive jurisdiction to settle any disputes.

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