Additional Terms for Fresh Relevance Services

The following additional terms (“Additional Fresh Relevance Terms”) shall apply when dotdigital provides Fresh Relevance Services to the Client as specified in the relevant Service Agreement. These Additional Fresh Relevance Terms are supplemental to the dotdigital Terms as located at https://www.dotdigital.com/terms (“Terms”), are part of the Terms, and shall be read in conjunction with the Terms. In the event of any conflict or inconsistency between these Additional Fresh Relevance Terms and the Terms, the provisions of these Additional Fresh Relevance Terms shall prevail in relation to the Fresh Relevance Services.

1. Definitions

All capitalised terms in these Additional Fresh Relevance Terms shall have the meaning as prescribed by the Terms unless otherwise specified below.

“Content” means any data whether in digital format such as text, voice, videos, images, and sound, or optical or other format, including metadata, email templates, newsletters, distribution lists, links, images, graphs and photos that conveys essence, substance, information, meaning, purpose, intent, or intelligence, either singularly or when in a combined form, in either its unprocessed or processed form.

“Client Data” means all Content defined above and any other materials:

i. uploaded or imported into the Fresh Relevance Services via the Fresh Relevance System which is processed or transmitted by or on behalf of the Client; or

ii. by any person or application or automated system using the Client’s account for the purposes of providing the Fresh Relevance Services to the Client; or

iii. collected from the Client’s website or online content by the Fresh Relevance System; or

iv. otherwise any information the Client provides to dotdigital in connection with the Service Agreements, the Terms and these Additional Fresh Relevance Terms.

“Fresh Relevance Professional Services” means any professional service made available to the Client pursuant to these Additional Fresh Relevance Terms as set out in a Service Agreement.

“Fresh Relevance Services” means Fresh Relevance System Services and Fresh Relevance Professional Services that are made available by dotdigital to the Client pursuant to these Additional Fresh Relevance Terms as set out in a Service Agreement.

“Fresh Relevance SLA” means (i) Service Level Agreement located at https://www.freshrelevance.com/legal/legal-documents/ as amended from time to time, or (ii) if the Client purchased Platinum Support as specified in a Service Agreement, Fresh Relevance Platinum Support SLA located at https://www.freshrelevance.com/legal/legal-documents/ as amended from time to time.

“Fresh Relevance System” means the real-time marketing software-as-a-service platform currently located at https://www.freshrelevance.com/ (as may be updated from time to time at dotdigital’s sole discretion) and associated infrastructure.

“Fresh Relevance System Services” means the real-time marketing services to be made available to the Client in accordance with the Fresh Relevance Documentation and as set out in a Service Agreement.

“Fresh Relevance Documentation” means the user manuals, guides, and other documentation provided to the Client in connection with the Fresh Relevance System and Fresh Relevance Services.

“Other Services” means third party products, applications, services, software, products, networks, systems, directories, websites, databases or information which the Client may connect to or enable in conjunction with the Fresh Relevance System or Fresh Relevance Services, including any of the foregoing which may be integrated directly into the Client’s systems.

2. Provision of Fresh Relevance Services

2.1. dotdigital shall provide the Fresh Relevance Services to the Client subject to the terms and conditions set forth in the Terms.

2.2. For the purposes of the Terms and these Additional Fresh Relevance Terms, when the Fresh Relevance Services are provided by dotdigital to the Client, the term “Services” as defined in the Terms shall be deemed to include the Fresh Relevance Services, and the term “Materials” as defined in the Terms shall be deemed to include the Fresh Relevance System. The inclusion of the Fresh Relevance Services and the Fresh Relevance System in the definitions of “Services” and “Materials” respectively, shall not affect the applicability of any other terms or conditions set forth in the Terms, except as expressly provided in these Additional Fresh Relevance Terms.

2.3. Where open-source software is used as part of the Fresh Relevance System or Fresh Relevance Services, such software use by the Client will be subject to the terms of the open-source licences.

3. Service Levels and Support Services for Fresh Relevance Services

3.1. Notwithstanding any service levels or support services set forth in the Terms with respect to Services, the service levels and support services applicable to the Fresh Relevance Services shall be governed by the Fresh Relevance SLA, which is incorporated herein by reference.

3.2. The Client acknowledges and agrees that the service levels and support services specified in the Terms shall not apply to the Fresh Relevance Services, and that the Fresh Relevance SLA shall be the sole and exclusive source of the service levels, support services, and remedies applicable to the Fresh Relevance Services.

3.3. In the event of any conflict or inconsistency between the Terms and the Fresh Relevance SLA with respect to the service levels or support services applicable to the Fresh Relevance Services, the provisions of the Fresh Relevance SLA shall prevail.

4. Third Party Services

4.1. dotdigital or third parties may make Other Services available to the Client. When dotdigital provides an integration for one of these Other Services, dotdigital will support the integration. dotdigital will also support any Other Services when this is explicitly stated in the relevant Service Agreement. Otherwise, any acquisition by Other Services by the Client, and any exchange of data between the Client and any Other Services, is solely between the Client and the applicable Other Services and is not supported by dotdigital.

4.2. If the Client installs or enables any Other Services for use with the Fresh Relevance Services, the Client grants dotdigital permission to allow the provider of such Other Services to access the Client’s data which includes personal data provided by the Client as required for the interoperation of such Other Services with the Fresh Relevance Services. For the avoidance of doubt, the choice to purchase, install, enable or otherwise use the Other Services is solely decided by the Client. dotdigital is not responsible for any disclosure, modification or deletion of the Client’s data resulting from access to the Fresh Relevance Services by the provider of Other Services.

4.3. The Fresh Relevance Services may contain features designed to interoperate with Other Services. To use such features, the Client may be required to obtain access to Other Services from their providers and may be required to grant dotdigital access to the Client’s account(s) on such Other Services. If a provider of Other Services ceases to make the Other Services available for interoperation with the corresponding Fresh Relevance Service features on reasonable terms to dotdigital, dotdigital may cease providing those Fresh Relevance Service features without entitling the Client to any refund, credit or other compensation.

5. Client Data

5.1. All intellectual property rights in Client Data will remain, as between the parties, the Client’s property.

5.2. The Client grants dotdigital a non-exclusive, royalty-free, revocable and sublicensable license to copy, store, modify, reproduce, distribute, display, disclose and otherwise use Client Data on the Fresh Relevance System solely for the purposes of operating the Fresh Relevance System, providing the Fresh Relevance Services, fulfilling its obligations and exercising its rights under the relevant Service Agreement, the Terms and these Additional Fresh Relevance Terms.

5.3. The Client represents and warrants to dotdigital that Client Data, and its use by dotdigital in accordance with the terms of these Additional Fresh Relevance Terms will not:

5.3.1. breach any applicable laws;

5.3.2. infringe any intellectual property rights or other legal rights of a third party; or

5.3.3. give rise to any cause of action against dotdigital, its Associated Companies or any other third party engaged by or on behalf of dotdigital. dotdigital reserves the right to edit or remove any of Client Data or Client Content that is submitted to the Fresh Relevance System, stored on the servers, or hosted or published by Fresh Relevance System. Notwithstanding the foregoing, dotdigital does not assume any responsibility for monitoring Client Data or Client Content submitted or published on the Fresh Relevance System or website.

5.4. You grant to dotdigital, solely to the extent necessary to provide the Fresh Relevance Services hereunder, a worldwide, non-exclusive, royalty-free, revocable, sublicensable license to use, reproduce, adapt, publish, translate, and distribute Client Content in any existing or future media. Those include without limitation Client Data, text, images, audio material, video material, and audio-visual material that is submitted to or made available dotdigital. Client will not submit any of Client Data to the Fresh Relevance System that is illegal or unlawful, or that is or has been the subject of any threatened or actual legal proceedings.

5.5. If dotdigital receives information that Client Content may violate applicable law or third-party rights, dotdigital will promptly notify the Client. In such event, the Client will promptly remove or stop using such Content, or if the Client does not do so then dotdigital can choose to promptly remove or stop using such Content, until the issue is resolved.

5.6. In the event of a breach of the above terms in this clause 5, dotdigital reserves the right to:

5.6.1. disable the Client’s credentials, the Client’s use of the Fresh Relevance System or Fresh Relevance Services, or to restrict access to all or part of the Fresh Relevance System in a commercially reasonable manner, and,

5.6.2. where necessary in the circumstances, block computers using the Client’s IP addresses from accessing the Fresh Relevance System or Fresh Relevance Services without notice.

5.7. The Client shall indemnify dotdigital and its Associated Companies together with their respective directors, officers, agents and employees against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by dotdigital or any of its Associated Companies arising from or in connection with dotdigital’s use of Client Data in accordance with the terms of the relevant Service Agreement, the Terms and these Additional Fresh Relevance Terms. This indemnity shall not cover dotdigital to the extent that a claim under it results from dotdigital’s negligence or wilful misconduct.

6. Data Protection

6.1. The Fresh Relevance System or Fresh Relevance Services are provided to the Client, data collection and processing shall be in accordance with the privacy policy published at https://www.freshrelevance.com/legal/privacy-policy

6.2. For the purposes of these Additional Fresh Relevance Terms, clause 2.2 of the Terms is replaced in its entirety with the following clause: Third parties are used to host the Fresh Relevance System servers for the provision of the Fresh Relevance Services. The Client hereby consents to the use of data centres located in the UK, the EU, the USA, or Australia.

7. Subcontractors

dotdigital may engage subcontractors or other third parties to perform certain duties under the relevant Service Agreement in accordance with the Terms and these Additional Fresh Relevance Terms. dotdigital shall be liable for any breaches of the relevant Service Agreement, the Terms and these Additional Fresh Relevance Terms caused by the acts, omissions or negligence of any subcontractors it uses to provide the Fresh Relevance System or Fresh Relevance Services as if such acts, omissions or negligence had been committed by dotdigital.

8. Schedules

8.1. The following schedules are incorporated into and form an integral part of these Additional Fresh Relevance Terms:

8.1.1. Schedule 1: Payment Plans (Monthly and Annual)

8.1.2. Schedule 2: Usage Limits

8.2. The customer’s rights and obligations with respect to the Fresh Relevance Services, including payment plans and usage limits, shall be subject to the terms and conditions set forth in the applicable schedules.

8.3. In the event of any conflict or inconsistency between the provisions of these Additional Fresh Relevance Terms and the provisions of the schedules, the provisions of the schedules shall prevail with respect to the subject matter addressed therein.

Schedule 1: Payment Plans (Monthly and Annual)

Monthly Payment Plans

On each Monthiversary, dotdigital will charge the monthly Charges agreed for Contract Month’s Page Views, in advance. Starting from the third Monthiversary, dotdigital will also calculate the rolling average of the Client’s previous three calendar months’ Page Views (to smooth out usage peaks). If this average traffic is higher than the agreed level of Page Views, the Client will also be charged an additional pro-rata proportion of the Invoice Value specified in the Service Agreement.

Annual Payment Plans

dotdigital will calculate the rolling average of the Client’s previous Contract Year’s Page Views. If this average traffic is higher than the agreed level of Page Views, the Client will also be charged an additional pro-rata proportion of the Invoice Value specified in the Service Agreement.

If during the Term, the actual number of Monthly Page Views is significantly and consistently higher than the Contract Month Page Views, additional pro-rata fees will be applied.

For both types of Payment Plan

An online report shows the Client’s current Page View usage.

Payment Plan Definitions

• Start Date is the start date as specified in the Service Agreement
• “Monthiversary” is the date in each month with the closest day number to that of the Start Date
• “Contract Month” is the period between two adjacent Monthiversaries
• “Yearly Anniversary” is the date in each year with the closest day number and the same month as the Start Date
• “Contract Year” is the period between two adjacent Yearly Anniversaries
• “Invoice Value” is the subscription amount of an invoice, excluding any services work and taxes

Schedule 2: Usage Limits

Monthly Website Page Views (Page Impressions)

Prices of some modules of Fresh Relevance Services are based on the Client’s website traffic, measured as Page Views. The Client will be invoiced monthly or annually in advance in accordance with Schedule 1: Payment Plans.

Search Units (Units)

Prices of some modules of Fresh Relevance Services are based on the Client’s Search Unit requirements. The Client will be invoiced monthly or annually in advance, in accordance with Schedule 1: Payment Plans.

A Search “Unit” is calculated based on the following:

A Search request is one API call. It is one or more search operations sent in a single exchange. Search operation is triggered when a search is performed. In autocomplete, a new search request is performed on every keystroke. A new request is performed on every change in the selected filters (facets) in search results and product listings.

Email Content Impressions and Web Content Impressions

Email Content Impressions and Web Content Impressions for the Modules are unlimited, subject to a fair usage policy. If the fair usage policy is exceeded on a 3-month rolling average basis, dotdigital will add a pro-rata amount to the next invoice.