ROKT PLATFORM SERVICES AGREEMENT
Updated June 2021
BY ACCEPTING THIS ROKT PLATFORM SERVICES AGREEMENT (“AGREEMENT”), BY CLICKING A BOX PRESENTED TO YOU WITHIN YOUR WOOCOMMERCE ACCOUNT PORTAL INDICATING YOUR ACCEPTANCE, YOU AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT AND YOU ACKNOWLEDGE YOUR DESIRE TO RECEIVE THOSE CERTAIN SERVICES DESCRIBED IN THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (WHETHER AS AN AUTHORIZED EMPLOYEE, ATTORNEY OR AGENT), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU“, “YOUR” OR “PARTNER” IN THIS AGREEMENT SHALL REFER TO YOU OR SUCH ENTITY AND ITS AFFILIATES, AS APPLICABLE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES, AND YOU MUST UNINSTALL THE “ROKT ECOMMERCE” APPLICATION FROM YOUR WOOCOMMERCE ACCOUNT. IN THIS AGREEMENT, AN “AFFILIATE” OF A PARTY MEANS ANY ENTITY THAT DIRECTLY OR INDIRECTLY CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH SUCH PARTY (“CONTROL” OF AN ENTITY MEANING HAVING GREATER THAN 50% OWNERSHIP OR THE RIGHT TO DIRECT THE MANAGEMENT OF THE ENTITY). USE OF ANY OF THE SERVICES SHALL CONSTITUTE AGREEMENT WITH AND ACCEPTANCE OF THIS AGREEMENT. THE AGREEMENT IS EFFECTIVE AS BETWEEN YOU/PARTNER AND ROKT PTE LTD OF 3 PHILLIP STREET, #11-01 ROYAL GROUP BUILDING, SINGAPORE 048693 (“ROKT”) AS OF THE TIME YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AS DESCRIBED ABOVE.
THE FOLLOWING PROVISIONS GOVERN THE IMPLEMENTATION AND USE OF THE PRODUCTS, SERVICES, AND TECHNOLOGY MADE AVAILABLE BY ROKT TO YOU/PARTNER VIA YOUR INSTALLATION OF THE ROKT ECOMMERCE PLUGIN FROM THE WORDPRESS PLUGIN MARKETPLACE:
1. SCOPE OF SERVICES.
1.1 Relationship of the Parties. The Partner appoints Rokt as an independent contractor during the Effective Term to provide the Services in accordance with the Agreement. Rokt may assign any of its rights and delegate any of its duties under this Agreement to one or more of its subsidiaries.
1.2 The Services may be provided to You by installing the Rokt Ecommerce application and registering for an account (“Account”) with the Rokt Platform used to provide the Services and allowing electronic management of Campaigns, as applicable. Provision of the Services, and Account registration, requires You/Partner to submit to Rokt Your/Partner’s corporate and personal information, as well as valid payment method.
1.3 Reports. Rokt will provide Partner with performance reports from time to time via the Rokt Ecommerce dashboard.
1.4 Support. Rokt will provide reasonable ongoing assistance to Partner regarding technical, administrative and service-oriented issues specifically relating to Partner’s use of the Rokt Platform.
2.ROKT PLATFORM USE AND ACCESS.
2.1 Use of the Rokt Platform. During the Effective Term, and subject to the terms and conditions of this Agreement, Partner (and its Clients, if applicable) may access and use the Rokt Platform for the purpose of receiving and implementing Rokt Ecommerce or utilizing certain features and functionality designed to optimize Partner Sites.
2.2 Rokt Platform Revisions. Rokt may revise the features and functionality of the Rokt Platform at any time, provided no such revision results in a material degradation of the Rokt Platform made available to Partner at the time.
2.3 Access Restriction and Denial. Notwithstanding anything to the contrary in this Agreement, Rokt reserves the right to deny access to any proposed or current Client (i) who is or represents a competitor to Rokt or (ii) whom Rokt deems would be potentially materially risky or harmful to Rokt’s business, customers or prospects in any way if such proposed or current Client were granted or allowed to continue access to the Rokt Platform.
3. TERMS SPECIFIC TO MARKETPLACE CAMPAIGNS.
Marketplace Campaigns (i.e. hosting third party Marketplace Content on a Partner Website, as further defined in Clause 15) will be available to Partner for use in conjunction with certain other Rokt Ecommerce services, if applicable. If Partner uses Marketplace Campaigns, the following terms in this Clause 3 apply:
3.1 Marketplace Campaigns. Partner shall activate and manage the Marketplace Campaigns through the Rokt Platform or through a Rokt account manager.
3.2 Serving Content into the Partner Content Areas. When Marketplace Campaigns are active, Rokt will be the Partner’s exclusive provider of advertising placement services with respect to the Partner Content Areas, and the Rokt Platform will serve Marketplace Content into the Partner Content Areas via proprietary algorithms. Partner will not reduce or restrict Partner Content Areas available for Marketplace Campaigns without Rokt’s approval.
3.3 Bidding by Marketplace Advertisers. Marketplace Campaigns involve a market mechanism, where all available Marketplace Content is evaluated on multiple factors, including the maximum bid or value and relevance to the particular User, to determine which Marketplace Content should be placed.
3.4 Revenue Share Fee. Rokt will invoice and collect any charges paid by Marketplace Advertisers. Rokt shall pay to Partner a portion of such charges equal to 50% of the Marketplace Receipts attributable to Marketplace Content served into the Partner Content Areas (the “Partner Revenue Share Fee”).
3.5 Excluded Marketplace Content and Excluded Marketplace Advertisers. Rokt will not serve Marketplace Content via the Rokt Platform from any Marketplace Advertiser or vertical designated by the Partner as an Excluded Marketplace Advertiser in the Excluded Marketplace Advertiser’s section of the Partner’s account on the Rokt Platform. The Partner can amend the list of Excluded Marketplace Advertisers at any time via the Rokt Platform. Changes made via the Rokt Platform are rolled out as soon as technically achievable. Written requests will be processed within one (1) business day of confirmed email receipt.
3.6 Marketplace Content and Requirements; Removal. Rokt will (i) represent the Rokt Platform fairly and honestly to Marketplace Advertisers, (ii) not misrepresent the Partner Websites or Agreed Partner Content Areas to any Marketplace Advertiser, and (iii) ensure that each Marketplace Advertiser has accepted the Rokt Ad Policies before accepting any Marketplace Content, and direct the Marketplace Advertiser to comply with them. Partner may request that Rokt remove Marketplace Content at any time for any reason, and Rokt will ensure that such Marketplace Content is promptly removed.
4. TERMS SPECIFIC TO INTERNAL CAMPAIGNS. Internal Campaigns (i.e. Partner’s running its own Campaigns via the Rokt Platform, as further defined in Clause 15) may be made available to Partner, at Rokt’s sole discretion, for use in conjunction with certain other Rokt Ecommerce services. If Partner uses Internal Campaigns, the following terms apply:
4.1 Provision of Internal Campaigns. Rokt will provide to Partner the use of Internal Campaigns as specified in a Service Schedule or otherwise as agreed from time to time. Partner shall activate and manage the Internal Campaigns through the Rokt Platform or Rokt account manager.
4.2 Campaigns. Campaigns may be lodged with Rokt by providing Partner content including copy, images, links, and format files. Such content must adhere to the Rokt Ad Policies. Rokt does not provide creative or design services for hire. Partner will be solely responsible for the performance of all obligations hereunder in connection with any and all Campaigns, and Rokt takes no responsibility for the content of such Campaigns.
4.3 Additional Terms. Rokt and Partner may agree from time to time in a Services Schedule or similar ordering document to custom terms pertaining to pricing, term, volume, and functionality, among other things (“Custom Terms”). In the event of inconsistency between any such Custom Terms and the provisions of the body of this Agreement, the Custom Terms shall prevail.
5. FEES AND EXPENSES.
5.1 Internal Campaigns. Where applicable, Partner shall pay Rokt such Rokt Service Fees, and such fees as are set forth in any Services Schedule adopted by the parties at or after the execution of this Agreement, if any. Rokt will not be required to refund Rokt Service Fees under any circumstances, other than any mutually agreed rebate set forth in a Service Schedule. Partner agrees to pay all reasonable costs of collection (including legal and professional fees) in the event Partner fails to pay any agreed amounts within the applicable agreed-upon time.
5.2 Certain Increases. In the event of any change in applicable law or the issuance of any directive from a governmental or regulatory entity that may cause Rokt an increase in the cost of providing one or more elements of the Services, Rokt reserves the right to allocate developmental costs associated with implementing the change or order across all affected customers and/or modify its rates for access to and use of the Rokt Platform retroactive to the effective date of such change, order or other directive. Additionally, Rokt reserves the right to increase or modify any Rokt Service Fees not more than once each calendar year. Rokt will use commercially reasonable efforts to deliver to Partner thirty (30) days’ advance notice of such increase in costs described above, as well as other reasonable information relating to any applicable change, order or other directive necessitating such increase(s). In the event of a material increase in such costs, Partner may terminate this Agreement upon thirty (30) days’ written notice to Rokt. Partner must exercise its right to terminate this Agreement in accordance with this Clause 5.2 within thirty (30) days after Partner’s receipt of notice from Rokt of such material increase in costs.
5.3 Service Costs. If applicable, Rokt shall select any necessary external service providers (e.g. an SMS provider in connection with Calendaring Services) in its sole discretion. Any out-of-pocket costs and expenses (e.g. SMS fees) incurred by Rokt in connection with delivery of the Services shall be charged to and reimbursable by Partner monthly.
- With respect to Marketplace Campaigns, Partner authorizes Rokt to generate a recipient created invoice (“RCI”) based on its accounting for the Partner Revenue Share Fee and other amounts due from Rokt, if any, within ten (10) days following the end of each calendar month directly following the month of activity covered by the invoice. Rokt Service Fees incurred by the Partner, if any, may be applied to and offset any Partner Revenue Share Fee or other amounts due from Rokt, if any.
- With respect to Internal Campaigns, Rokt shall generate an invoice within ten (10) days following the end of the month in which Partner’s use of the relevant activity occurred, unless otherwise agreed in a Services Schedule or similar ordering document.
- In the event amounts due to Rokt for Internal Campaigns in any invoicing period exceed amounts due to Partner for Partner Revenue Share Fees, Rokt shall submit an invoice showing such amounts owing from Partner in accordance with Rokt’s standard invoicing process.
- Where any payment owing to Rokt by the Partner is overdue, Rokt may suspend the Services. Without limiting Rokt’s rights or remedies, Rokt reserves the right to charge interest on any overdue payments at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
5.5 Estimation of cleared funds. To facilitate the process of paying the Partner earlier, Rokt may estimate the cleared funds prior to the receipt of all funds. Such estimations will be reviewed on or around a quarterly basis.
5.6 Terms of Payment:
- With respect to Marketplace Campaigns, Rokt will pay any net amounts due to Partner as shown on any invoice within forty-five (45) days of the end of each calendar month in which such invoice is created. Partner will input and keep current wire transfer payment details (or credit card details, if applicable) via the Rokt Platform made available from the Effective Date. Notwithstanding anything to the contrary in the foregoing, Rokt reserves the right to withhold payment of any invoice until the total accrued Partner Revenue Share Fee amounts due to Partner as shown on one or more invoices issued to Partner in accordance with this Agreement exceed a minimum of $100.00.
- With respect to Internal Campaigns, Partner shall pay any net amounts due to Rokt as shown on any invoice within forty-five (45) days of receipt of such invoice.
5.7 Disputes. Where there is a bona fide dispute between the Parties as to any amounts payable by one Party to the other, such disputed amounts may be withheld so long as each Party is working reasonably to resolve such dispute. Any undisputed amounts must be paid without delay as per the agreed payment terms.
5.8 Taxes. Where specific taxes are due and payable in respect of Rokt Service Fees or the Partner Revenue Share Fee, Partner shall be responsible for such taxes. Rokt may make tax withholdings from amounts owed to Partner to the extent required by law.
5.9 Other Costs. Unless otherwise provided in this Agreement, each party shall retain its own revenues and bear its own costs and expenses in connection with its activities performed under this Agreement.
6. LICENSED SOFTWARE.
6.1 License grant. Rokt hereby grants Partner a nonexclusive license to use the Licensed Software, as necessary for Partner’s (or its Clients’) internal business purposes and solely as a component of the Rokt Platform, provided Partner complies with the restrictions set forth below in Clause 6.2. Such internal business purposes do not include use by any parent, subsidiary, or affiliate of Partner, or any other third party, in each case other than Partner’s Clients as specifically authorized in this Agreement, and Partner shall not permit any such use.
6.2 Restrictions on software rights. Copies of the Licensed Software created or transferred pursuant to this Agreement are licensed, not sold, and Partner receives no title to or ownership of any copy or of the Licensed Software itself. Furthermore, Partner receives no rights to the Licensed Software other than those specifically granted in Clause 6.1 above. Without limiting the generality of the foregoing, Partner shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Licensed Software; or (b) use the Licensed Software in any way forbidden by Clause 8.8 below.
6.3 Integration of the Rokt Software. Promptly after the date of this Agreement Rokt will provide Partner with access to the Licensed Software and related documentation. Partner shall host and manage the Licensed Software as required by any hosting and management, operating system, hardware configuration or other technical requirements communicated to Partner by Rokt from time to time (the “Hosting and Management Requirements”). This shall include, for the avoidance of doubt, the installation and implementation of the Rokt Ecommerce application within Partner’s WooCommerce account. Rokt shall have no responsibility or liability for any failure of the Rokt Platform resulting from Partner’s failure to comply with the requirements of the Hosting and Management Requirements.
7. TERM AND TERMINATION.
7.1 Term: The Agreement will commence on the date the final party executes it, and will remain in effect for the initial term of one year from the Effective Date (“Initial Term”). After the Initial Term, the Agreement shall auto-renew for successive one-year periods (each a “Renewal Term”) unless written notice of an intent to opt out of such renewal is provided by either party at least thirty (30) days before such renewal date. The Initial Term and any and all Renewal Terms shall collectively be referred to herein as the “Effective Term”.
- Either Party may terminate this Agreement with immediate effect by giving written notice to the other Party in the event that:
- the other Party materially breaches the provisions of this Agreement; provided that if such breach is capable of remedy, no such termination shall be effective unless and until the breaching party fails to remedy the breach within thirty (30) days after receiving notice from the non-breaching Party demanding it to do so; or
- the other party suffers an Insolvency Event.
- Further, Rokt may terminate this Agreement for convenience at any time during the Term by providing thirty (30) days’ written notice to the Partner.
7.3 Effect of Termination. Any termination pursuant to Clause 7.2 will be without any liability or obligation of the terminating party, other than with respect to any breach of the Agreement prior to termination. Termination does not affect any accrued rights of either party. The provisions of Clauses 9 through 15 of this Agreement will survive the expiration or termination of the Agreement for any reason.
8. REPRESENTATIONS AND WARRANTIES, COVENANTS AND ACKNOWLEDGEMENTS.
8.1 Partner warranties. Partner represents and warrants to Rokt as at the date of this agreement that:
- Partner is duly organized, validly existing and in good standing, and has the authority to carry on its business as conducted;
- the execution, delivery and performance of this Agreement have been duly authorized by Partner and this Agreement constitutes a valid and binding agreement of Partner; and
- any necessary software, systems or equipment utilized in connection with the Partner Content Areas are owned, validly licensed or otherwise legally controlled by the Partner.
8.2 Rokt warranties. Rokt represents and warrants to Partner as at the date of this agreement that:
- Rokt is duly organized, validly existing, in good standing, and has the authority to carry on its business as conducted; and
- the execution, delivery and performance of this Agreement have been duly authorized by Rokt and this Agreement constitutes a valid and binding agreement of Rokt;
8.3 Partner Service. Partner is the owner and operator of the Partner Service and related Partner Website(s), and Partner retains responsibility for the continuing performance, accuracy, reliability and availability, the design, layout, hosting, and maintenance of the Partner Service and Partner Websites. From time to time, Partner may choose to redesign or modify the organization, structure, specifications, arrangement, format, ‘look and feel’, navigation, functionality, guidelines, and/or other elements of the Partner Websites. Partner is solely responsible for managing customer order placement, fulfilment/delivery, billing, customer service, and payment of all taxes required to be paid to any taxing authorities in connection with the Partner Service and sale of its products and services.
8.4 No interference. Partner will not intentionally do anything that would interfere, impede, or alter the ability of Rokt to provide Services. Unless expressly authorized in writing by Rokt, Partner may not enter into any type of arrangement with a third party where that third party receives payments made to Partner under the Agreement or other financial benefit in relation to the Services.
8.5 Rokt Platform. Partner acknowledges that Rokt is the owner and operator of the Rokt Platform, and Rokt retains responsibility for the design, layout, hosting, and maintenance of the Rokt Platform. From time to time, Rokt may choose to redesign or modify the organization, structure, specifications, arrangement, format, ‘look and feel’, navigation, functionality, guidelines, and/or other elements of the Rokt Platform, and its related websites at any time, and may suspend or stop a Service altogether. In the event any Service is suspended or cancelled, Rokt will refund to Partner any prepaid Rokt Service Fees not yet earned applicable to such Service.
8.6 Data and Functionality Integration. For certain components of the Rokt Platform to be operable and successfully facilitate certain Rokt Ecommerce services, such as for Calendaring Services to be used to allow Users to add the details of their Calendar Events to their mobile calendar; (i) Partner must include the transmission of all demographic fields Rokt requires to supply the relevant service; and (ii) any relevant functionality may need to be integrated on the relevant Partner Content Areas, on order confirmation pages, or in all order confirmation or other emails sent by Partner to current and potential Users. Any such requirements will be specified in the Hosting and Management Requirements.
8.7 Other Partner Covenants:
- Partner will comply, and cause its employees, agents and subcontractors to comply, in all material respects, with all laws, rules and regulations applicable to Partner’s performance of its obligations under this Agreement;
- Partner will not use the Services or any User information generated thereby to:
- send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise, or to send any defamatory, libelous, threatening, racist or obscene messages or messages that violate a User’s right to privacy or a right of publicity; or
- violate any laws or regulations specific to the markets in which it operates, including those related to spamming, junk mail or other related laws or regulations prohibiting or discouraging unsolicited mail.
- Partner will not provide any material to Rokt which infringes the intellectual property rights of, or violates any agreement with, any third party.
- Partner and its Clients shall comply with the Acceptable Use Policy (“AUP”), as provided herein. Partner shall not: (i) use the Rokt Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Rokt Platform, except Partner’s Clients as specifically authorized by this Agreement; (ii) provide Rokt Platform passwords or other log-in information to any third party, except Partner’s Clients as specifically authorized by this Agreement; (iii) share non-public Rokt Platform features or content with any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Rokt Platform’s source code, (v) access or use the Rokt Platform in a way intended to avoid incurring fees or exceeding usage limits or quotas, (vi) resell or sublicense any element of the Rokt Platform or the Documentation or (vii) access the Rokt Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Rokt Platform, or to copy any ideas, features, functions or graphics of the Rokt Platform. If it suspects any breach of the requirements of this Clause 8.7, including without limitation by Users, Rokt may suspend Partner’s access to the Rokt Platform without advanced notice, in addition to such other remedies as Rokt may have. Neither this Agreement nor the AUP requires that Rokt take any action against Partner or any User or other third party for violating the AUP, this Clause 8.8, or this Agreement, but Rokt is free to take any such action it sees fit.
- Partner shall take reasonable steps to prevent unauthorized access to the Rokt Platform, including without limitation by protecting its passwords and other log-in information. Partner shall notify Rokt immediately of any known or suspected unauthorized use of the Rokt Platform or breach of its security and shall use best efforts to prevent, mitigate and/or remedy any such breach and its effects.
8.8 Other Rokt Covenants:
- Rokt will comply, and cause its employees, agents and subcontractors to comply, in all material respects, with all laws applicable to Rokt’s performance of its obligations under this Agreement.
- Rokt will provide Partner with the Licensed Software code and any variations to the code that may be released from time to time.
- Rokt will provide the Services with due care and skill and in accordance with high professional standards.
- Rokt will not use the Services or any User information generated thereby to:
- send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise, or to send any defamatory, libelous, threatening, racist or obscene messages or messages that violate a User’s right to privacy or a right of publicity; or
- violate any laws or regulations specific to the markets in which it operates, including those related to spamming, junk mail or other related laws or regulations prohibiting or discouraging unsolicited mail.
8.9 Disclaimers. None of Rokt, Partner or their respective Affiliates makes any representations or warranties, express or implied, except for the express representations and warranties in this Clause 8. Rokt and Partner expressly disclaim (to the fullest extent permitted by law) any and all other representations and warranties, express or implied, regarding the Rokt Platform or Partner Service, including without limitation any implied warranties of merchantability, fitness for a particular purpose, non-infringement, or implied warranties arising from course of dealing or course of performance.
9. INTELLECTUAL PROPERTY AND LICENSES.
9.1 Ownership by Partner. Rokt acknowledges and agrees that as between Partner on the one hand, and Rokt and its Affiliates on the other, Partner owns all right, title and interest in the Partner Service, Partner Websites and the Partner’s Brand Features.
9.2 Ownership by Rokt. Partner acknowledges and agrees that as between Partner on the one hand, and Rokt and its Affiliates on the other, Rokt and its Affiliates own all right, title and interest in the Rokt Platform, the Services and Rokt’s Brand Features. The Partner agrees that all intellectual property rights and interests in innovations relating to Rokt Platform and the Services (or suggested improvements) shall be assigned to Rokt and be Rokt’s sole property, and Partner agrees to execute any instruments of assignment reasonably requested by Rokt to effectuate the same.
9.3 No acquisition of IP rights. Other than as expressly set out in the Agreement, neither Party has or will acquire any right, title or interest in any intellectual property rights owned or licensed by the other Party.
9.4 Limited license to Partner. Rokt grants the Partner a royalty free, non-exclusive, worldwide, non-sublicensable license to use the Rokt Brand Features as necessary to enable the Partner to use and enjoy the benefit of the Services. Except for the foregoing license and as set forth in Clause 6 (Licensed Software) above, Partner has no other rights in the Rokt Platform or Brand Features and may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit the Rokt Platform in any manner. Upon the expiration or termination of this Agreement, Partner will cease use of the Rokt Brand Features and interfacing with the Rokt Platform and will promptly return all related documentation to Rokt or destroy all copies thereof in its possession or control.
9.5 Limited license to Rokt. Partner grants to Rokt a non-exclusive, royalty-free, worldwide, limited license to use the Partner Brand Features for display as part of the Services, on Rokt websites and any other marketing or promotional material prepared by Rokt or its Affiliates and to advertise the availability of the Services and its integration into the Partner Service. Upon the expiration or termination of this Agreement, Rokt will cease using the Partner Brand Features.
10.1 Privacy. Rokt will ensure that any collection, processing, use, disclosure and transfer of Personal Information by Rokt or any of Rokt’s third party suppliers, in connection with the performance of Rokt’s obligations under this Agreement, complies with all applicable laws, rules and regulations in the primary country of the Partner.
10.5 Partner Data. Partner owns and, unless otherwise specified in this Agreement, will retain all ownership relating to Partner Data. Partner agrees to disclose Partner Data to Rokt as required for Rokt to perform the Services. Rokt may use, and Partner hereby grants Rokt a perpetual, non-exclusive, worldwide, royalty-free license to use Partner’s intellectual property rights relating to, Partner Data for the purposes of providing the Services or otherwise fulfilling its obligations to the Partner under the Agreement and making offers and promotions to Users. Rokt acknowledges that all Partner Data is Confidential Information of Partner.
10.6 Rokt Data. Rokt owns and, unless otherwise specified in this Agreement, will retain all ownership of any intellectual property rights relating to Rokt Data, including with respect to Derived Data. Partner acknowledges that all Rokt Data is Confidential Information of Rokt. Partner may use Rokt Data that is disclosed or provided to Partner for the purpose of fulfilling its obligations under the Agreement, but in no event shall Rokt Data become Partner Data.
10.7 California Privacy Law. The Parties acknowledge and agree that Rokt is acting solely as a Service Provider (as that term is defined under the CCPA) with respect to its processing of Partner Data relating to Users who are California residents unless and until such time as any such User accepts an offer or promotion of a third party Marketplace Advertiser that is presented to such User in the provision of the Services. Rokt shall be prohibited from retaining, using, or disclosing Partner Data relating to Users who are California residents for any purpose other than for the specific purpose of performing the Services, including retaining, using, or disclosing Partner Data for a commercial purpose other than providing the Services.
10.8 European Privacy Law. The parties acknowledge and agree that if: (i) the Partner is established in the European Union, (ii) any data processed in the provision of the Services contains any personal data of individuals in the European Union, or (iii) if European Privacy Law otherwise applies to such personal data, (“European Personal Data“) then the Data Processing Agreement found at https://rokt.com/data-processing-agreement/ (the “DPA”) will govern the relationship formed hereby with respect to the parties’ processing of personal data, and to the extent of any inconsistency between the DPA and this Agreement, the DPA will prevail, provided however that to the extent of any inconsistency between Schedule 2 of this Agreement and Annex A to the DPA, Schedule 2 of this Agreement will prevail. For the avoidance of doubt, to the extent that Partner does not carry out any processing activity in the European Union with respect to this Agreement, then the DPA shall not apply.
11.1 Definition. For the purposes of this Agreement, “Confidential Information” means this Agreement, the Partner Data and the Rokt Data, the Rokt Platform, the Partner Service, all information about the disclosing party’s business or activities that is proprietary and confidential, which shall include all business, financial, technical and other information of a party marked or designated by such party as “confidential” or “proprietary” at the time of disclosure.
11.2 Confidentiality. Each Party will keep this Agreement and the Confidential Information of the other party confidential and use it only for the purposes stated in this Agreement, subject to the remaining provisions of this Clause 11 (Confidentiality).
11.3 Exclusions. Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party rightfully knew prior to receiving such information from the disclosing party or (iv) the receiving party develops independently of any information originating from the disclosing party.
11.4 Restrictions and Disclosure. Each Party agrees (i) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, each Party may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, (ii) on a ‘need-to-know’ basis under an obligation of confidentiality to its subcontractors, legal counsel, accountants, banks and other financing sources and their advisors, or (iii) to its affiliates for the purposes of performing its obligations under this Agreement; provided, that such Party will be responsible hereunder for the further acts and omissions of any such person to whom it has made any disclosure with respect to such Confidential Information under (ii) or (iii) above as if they were the acts or omissions of the Party itself.
11.5 Injunctive Relief. Each Party acknowledges that any material violation by a Party of the rights and obligations provided in this Clause 11 may result in immediate and irreparable injury to the other party, and hereby agrees that the other party may be entitled to seek immediate temporary, preliminary, and permanent injunctive relief against any continued violations upon adequate proof, as required by applicable law, and that any otherwise applicable requirement of bonding or other security in connection therewith shall be waived and not apply.
12.1 Indemnity by Rokt:
- Subject to Clauses 12.1(b) through 12.1(e), Rokt indemnifies, defends and holds harmless each of Partner, its Affiliates and their respective directors, officers, employees, agents and contractors both jointly and severally from and against any loss, expense, including reasonable attorney fees and expenses, damages, or liability reasonably incurred or suffered by Partner, its directors, servants and agents arising from any claim, demand, action, suit or proceedings brought by a third party in relation to (i) a Marketplace Advertiser’s Marketplace Content, or (ii) the Rokt Platform’s infringement of a copyright or patent, or mis-appropriation of the proprietary trade secret of a third party.
- Rokt agrees that it may not, without Partner’s prior written consent, enter into any settlement or compromise of any claim that results in any admission of liability or wrongdoing on the part of Partner.
- The obligations under Clause 12.1(a) are subject to Partner giving Rokt prompt written notice of any such claim and giving Rokt sole control of the defense of such claim.
- If a claim of infringement occurs that is subject to this Clause 12.1, or if Rokt determines that such a claim is likely to occur, Rokt may, at its option, procure for Partner the right to continue to use the Rokt Platform, replace or modify the Rokt Platform to make it non-infringing, or terminate this Agreement.
- Rokt will have no liability for any claim based on (i) any use of the Rokt Platform or the Services other than as permitted by this Agreement; or (ii) the combination of any Rokt Platform with any product, technology, data or materials, if the Rokt Platform, alone, would not have resulted in such infringement.
12.2 Indemnity by Partner:
- Subject to Clause 12.2(b) and Clause 12.2(c), Partner indemnifies, defends and holds harmless each of Rokt, its Affiliates and their respective directors, officers, employees, agents and contractors both jointly and severally from and against any loss, expense, including reasonable attorney fees and expenses, damages, or liability reasonably incurred or suffered by Rokt, its directors, servants and agents arising from any claim, demand, action, suit or proceedings brought by a third party in relation to any (i) Partner-supplied content, Partner-supplied data, or Campaigns, or (ii) Partner product or service with which the Rokt Platform integrates, or receives or transmits data from or to
- Partner agrees that it may not, without Rokt’s prior written consent, enter into any settlement or compromise of any claim that results in any admission of liability or wrongdoing on the part of Rokt.
- The obligations under Clause 12.2(a) are subject to Rokt giving Partner prompt written notice of any such claim and giving Partner sole control of the defense of such claim.
13. LIMITATION OF LIABILITY.
13.1 Liability exclusions. To the fullest extent permitted by law, each Party’s liability to the other for all loss or damage suffered or incurred by the other Party in connection with this Agreement (including all loss arising from any breach of this Agreement, tort including negligence or any breach of statute) is limited so that neither party will under any circumstances be liable to the other Party for any indirect or consequential loss, or any loss or corruption of data or loss of profit or revenue.
13.2 Liability cap: Any liability arising under this Agreement is limited to the amount of the Revenue Share Fee for the preceding twelve (12) months prior to the accrual of the claim. The parties agree that the foregoing represents a fair allocation of risk hereunder.
13.3 Applicability of liability cap. The limitations of liability in Clause 13.2 will not apply to any liability arising under an indemnity, any loss or damage arising from any breach of confidentiality, breach of privacy, infringement of Intellectual Property Rights, any personal injury or death arising from negligence, fraud or fraudulent misrepresentation, or any liability that cannot be excluded or limited at law.
13.4 Insurance. Rokt must effect and maintain for the duration of the Effective Term the following insurances:
- public liability (General Liability) insurance (with a minimum coverage value of USD$20 million); and
- professional indemnity (Errors and Omissions) insurance (with a minimum coverage value of USD$5 million).
13.5 Certificates of insurance. Rokt must provide the Partner with evidence of its certificates of insurance if Partner requests it.
14. FORCE MAJEURE
14.1 Without limiting this Agreement, neither party will be liable for any delay in performance or breach of this Agreement that arises as a result of a Force Majeure event.
14.2 “Force Majeure” means any act of government of state, civil commotion, epidemic, fire, flood, natural disaster, war, or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing.
14.3 Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third party hosting providers.
In this Agreement, the following words and phrases have the following meaning, unless expressly agreed otherwise:
“Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with such party (i.e. having greater than 50% ownership or the right to direct the management of the entity).
“API” means application programing interface.
“AUP” means Rokt’s acceptable use policy set out in Clause 8.8(d).
“Brand Features” means all trademarks, service marks, logos, other relevant intellectual property and other distinctive brand features of Rokt and its Affiliates, or Partner and its Affiliates, respectively.
“Calendar Event” means content in a User’s digital calendar that contains details of events such as television shows, sporting events, bookings, and flights.
“Calendaring Services” means services for managing and adding Partner’s Calendar Events into Users’ calendars including calendar CRM and calendar promotional services, through which Rokt permits users to add events to their mobile or other device calendar applications and allow Partner, Rokt and Marketplace Advertisers to publish Marketplace Content into Users’ calendars;
“CCPA” means the California Consumer Privacy Act of 2018.
“Campaigns” means the presentation and content of Partner offerings, promotions or advertisements through the Rokt Platform as part of Internal Campaigns.
“Client” means any company or individual who uses the Rokt Platform or the Services on Partner’s behalf, or through Partner’s account or passwords, or any API managed or offered by Partner, whether authorized or not, including without limitation Partner’s customers, and any of Partner’s or their respective employees and agents.
“Internal Campaigns” means the provision and use of the Rokt Platform to allow Partner to present Campaigns, information, data or other content which is published by Partner on the Partner Content Areas via the Rokt Widget or otherwise for Partner’s own internal uses, including but not limited to cross-promotion, upsell, referral generation, Calendaring Services, market research, survey & polling, coupon/voucher distribution, app download and data enrichment purposes. For the avoidance of doubt, Internal Campaigns is separate and distinct from Marketplace Campaigns and excludes third-party advertising.
“Commissions” means funds paid to (a) WooCommerce or WordPress for any applicable charges in connection with the WooCommerce Extension Store or the WordPress Plugin Marketplace and any revenue generated by Rokt Ecommerce, or (b) Marketplace Advertiser advertising agencies, if applicable and incurred in the generation of Marketplace Advertiser Booking Charges;
“Creative Rotation” means ensuring the User is presented the most relevant and engaging content including selection of offer creative or engagement assets, e.g. ensuring that the same User does not see the same Marketplace Content twice;
“Derived Data” means all datasets, analyses, and data that is captured or derived from interactions of Users with or from the operation of the Rokt Platform (including the Rokt Widget), which may be used by Rokt and accessed via real time one-way lookup of hashed identity by Partners to provide the Services, for the purposes of Creative Rotation, improving the user experience or performance of the Rokt Widget and Rokt Platform, to enhance the platform for the benefit of all users of the platform and to conclude offers and promotions set out in the Marketplace Content, or otherwise;
“European Privacy Law” means (i) prior to 25 May 2018, the EU Data Protection Directive (Directive 95/46/EC); and (ii) on and after 25 May 2018, the EU General Data Protection Regulation (Regulation 2016/679);
“European Union” means the member states of the European Union from time to time as established under the Treaty on the Functioning of the European Union and such other states as are members of the European Economic Area from time to time and are required to apply European Privacy Law;
“Excluded Marketplace Advertisers” means those companies identified as excluded in the Partner’s account on the Rokt Platform, as modified from time to time by Partner on the Platform;
“Insolvency Event” means where either entity enters into bankruptcy, liquidation, administration, receivership, a composition or arrangement with its creditors, has a receiver or manager appointed over all or any part of its assets or becomes or is deemed to become insolvent;
“Intellectual Property Rights” means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trademarks, service marks, trade names, domain names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or able to be registered, and includes the right to apply for the registration of such rights, anywhere in the world;
“Licensed Software” means such elements of the Rokt Platform, if any, as Partner is to run on its computers as may be provided from time to time by Rokt, including but not limited to that related to the Rokt Widget.
“Link” means a hypertext text and/or graphic link from one Internet page or site to another Internet page or site.
“Marketplace Campaigns” means the service of Rokt connecting Marketplace Advertisers to Partners by publishing Marketplace Content to Partner’s users on the Partner Content Areas and of connecting Users to Marketplace Advertisers by way of referral, which may be optimized by Rokt by means of using consumer offers engagement assets (such as Sweepstakes, coupons, free shipping offer, loyalty points and Partner offers) to increase overall engagement and performance.
“Marketplace Receipts” means (i) monies actually received from Marketplace Advertisers by Rokt or its associated entities in cleared funds in respect of Marketplace Advertiser Booking Charges, less (ii) any applicable Commissions, taxes and any other costs that are jointly agreed. Prizes provided directly by Partner as part of any Sweepstakes used for engagement assets are excluded from the calculation of Marketplace Receipts;
“Network Members” means those entities and associations who have executed Rokt Platform Service Agreements (or documents of similar content) and receive the individual and/or collective benefits therefrom. For the avoidance of doubt, Partner is a Network Member.
“Partner Content Areas” means the digital properties or assets owned or controlled by Partner or any of Partner’s Clients and made available for Marketplace Content and other Partner content, which may include a User’s calendars, or engagement, purchase, post-purchase, enquiry, post-enquiry registration, or post-registration areas of the Partner Website or any Client’s website on which the Rokt Widget is installed.
“Partner Data” means any data regarding Users and User transactions held by Partner (or its Clients) prior to the effectiveness of this Agreement or acquired by Partner during the Effective Term, other than any such data disclosed to Partner by Rokt;
“Partner Service” means the services provided by the Partner via its Partner Website, and all software, scripts, data, files, methods, or functionality used to provide the Partner Service.
“Partner Website(s)” means the website(s), mobile applications and other digital properties owned and/or operated by Partner that incorporate or feature the Rokt Widget as may be determined by the mutual assent of the parties;
“Personal Information” means information about an individual whose identity is apparent from the information, regardless of whether such information is provided by the Partner or a third party, or generated by Rokt and shall include “personal data” within the meaning of European Privacy Law;
“Marketplace Advertiser” means any entity (other than Partner or its Affiliates) whose Marketplace Content is served via the Rokt Platform, via Calendar Services and Marketplace Campaigns, as applicable, into the Partner Content Areas and other digital properties or assets owned or controlled by other Network Members. Should Partner wish to act as a “Marketplace Advertiser” across other digital properties or assets owned or controlled by other Network Members, it shall do so via a separate Advertiser Agreement with Rokt or one of its Affiliates;
“Advertiser Agreement” means an agreement between Rokt or one of its associated entities and a Marketplace Advertiser under which Rokt agrees to serve the Marketplace Advertiser’s Marketplace Content via the Rokt Platform, via Calendar Services and Marketplace Campaigns, as applicable, into the Partner Content Areas and other digital properties or assets owned or controlled by other Network Members;
“Marketplace Revenue” means the charges that Rokt will charge to a Marketplace Advertiser for serving its Marketplace Content into the Partner Website via the Rokt Platform as part of the Marketplace Campaigns, as applicable;
“Marketplace Content” means information, data or other content sourced via the Marketplace Campaigns that comprises Marketplace Advertisers’ promotional material intended for serving into the Partner Content Areas via the Rokt Widget;
“Referral” means any interaction of a User with the Rokt Widget which indicates an affirmative “opt-in” or acceptance to any offer or other intentional interaction of the User with the Rokt Widget; by way of example and not limitation, any app download, calendar invitation, cross-sell action or upsell action would be a Referral.
“Rokt Ad Policies” means the policies with which Marketplace Advertisers and Partners, when using Rokt’s Services, are directed to comply by Rokt as summarized published at https://policies.rokt.com including any future policies as adopted by Rokt from time to time in its absolute discretion;
“Rokt Data” means any data regarding Users and User transactions held by Rokt prior to the effectiveness of this Agreement or acquired by Rokt during the Effective Term, other than any such data disclosed to Rokt by Partner;
“Rokt Platform” means the technology platform owned, controlled and/or operated by Rokt, made available to Partner as a hosted service, and used to provide Rokt Ecommerce under this Agreement and generally to Network Members, which incorporates, without limitation, the Rokt Widget, the Licensed Software, Rokt Ecommerce, the Marketplace Advertiser platform and network, Rokt’s transaction marketing engine, the Rokt websites, the web portal through which Partner may access its Rokt account, and all software, scripts, data, files, methods, APIs or functionality therein and thereto enabling the provision of such Services;
“Rokt Service Fees” means any fees payable by Partner to Rokt for the provision and use of Internal Campaigns and any mutually agreed professional services work set forth in any Service Schedule, statement of work or equivalent ordering document.
“Rokt Widget” means the technology that Rokt provides Network Members to interact with Users, and integrates data from the Partner Website to the Rokt Platform and vice versa, whether to present Marketplace Content or otherwise, including software, scripts, algorithms, tags, web beacons and other similar technologies, as updated by Rokt from time to time;
“Service Schedule” means the list of Services being utilized by Partner, as may be set forth in any mutually agreed schedule to the Agreement or in any side letter, variation letter, or other agreement executed by the parties which references this Agreement, and as may be amended or supplemented from time to time, including via confirmed email;
“Services” means the specific Rokt Ecommerce products, solutions and services provided in connection with this Agreement, which may include, without limitation, Marketplace Campaigns and/or Internal Campaigns at Partner’s election, use of Derived Data for the Rokt network, and associated support.
“Sweepstakes” means a sweepstake, lucky draw, contest, competition, other game of chance, or mixed game of chance and skill;
“Rokt Ecommerce” means any tools and services (including hosted services via the Rokt Platform) provided by Rokt that support Partner’s business objectives, which may include, without limitation: marketing to Users, optimization on the Partner Website, purchase path optimization, calendaring integration, market research, customer feedback, social amplification, data enrichment, internal cross-sell, coupon/voucher distribution, sweepstake entries and surveys & polls, and associated CRM and email nurture services. Rokt Ecommerce includes any service that connects consumers through phone, email, or traffic referral, Calendaring Services and varied forms of marketing to Users. For the avoidance of doubt Rokt Ecommerce includes Marketplace Campaigns and Internal Campaigns but does not include any Marketplace Content. Additionally, Rokt Ecommerce includes the Rokt application entitled “Rokt Ecommerce” available on the WordPress Plugin Marketplace which Partner installs and integrates in order to allow Partner to implement, access and use the Rokt Platform in connection with a Partner Website hosted or provided by Automattic Inc.
“User” means a customer of or a visitor to a Partner Website.
16. GENERAL TERMS.
16.1 Notices. Any notice required or permitted hereunder shall be in writing and shall be given by:
- registered or certified mail, return receipt requested, postage prepaid;
- a confirmed facsimile; or
- a confirmed email.
16.2 Governing law and jurisdiction. Subject to Clause 8.8, 8.9, and 10, this Agreement is governed by and construed in accordance with the laws of New York, without having regard to any conflicts of laws provisions, and the Parties to this Agreement submit to the exclusive personal jurisdiction of the state and federal courts located in New York.
16.3 Severability. If any part, term or provision of the Agreement shall be held illegal, unenforceable, or in conflict with any law, the validity of the remaining portions shall not be affected thereby and each and every term shall be valid and enforceable to the fullest extent and in the broadest application permitted by law.
16.4 Amendments. Rokt may modify this Agreement or any additional terms that apply to the Services to, for example, reflect changes to the Services or changes to the law. You should monitor these terms regularly. Rokt will post notice of material modifications to this Agreement on the Rokt Platform or policies referenced in this Agreement at applicable URLs for such policies. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If You do not agree to the modified Agreement, You should discontinue Your use of the Services. No amendment to or modification of this Agreement by Rokt will be binding unless (i) You accept updated terms online, or (ii) You continue to use the Service after Rokt has posted updates to this Agreement or to any policy governing the Service. No amendment to or modification of this Agreement by You shall be binding unless in writing and signed by a duly authorized representative of Rokt (in which case those terms shall prevail to the extent of any inconsistency).
16.5 Independent contractors. The parties are dealing with each other as independent contractors. The Agreement should not be construed as creating or constituting an employee-employer relationship, a partnership, a joint venture, a franchise, or an agency between Partner and Rokt.
16.6 Binding authority. The Partner warrants to Rokt that the person executing the Agreement has authority to execute this Agreement on behalf of the Partner and bind the Partner to the terms and conditions of this Agreement.
16.7 Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Execution and delivery of the Agreement may be evidenced by facsimile transmission.
16.8 Entire agreement. This Agreement contains the entire understanding between the Parties concerning its subject matter, and supersedes all prior understandings, communications or agreements between the Parties.
16.9 No assignment. Except as expressly provided in this Agreement, no Party shall be entitled to assign, transfer or novate this Agreement or any rights arising under this Agreement, and any such action shall be void ab initio, without the other Party’s prior written consent.
16.10 Third party rights. No person who is not a Party to this Agreement (except any permitted assigns) shall be entitled to enforce the terms of this Agreement.
16.11 Interpretation. In this Agreement and for all purposes:
- headings and underlining are for convenience only and do not affect the construction of this Agreement;
- a provision of this Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision;
- any reference to a currency or a dollar amount is to United States dollars, and all invoices, bids, reports, fees and other amounts shall be denominated in US Dollars, including any transactions that may originally be denominated in another currency, such transactions being converted by Rokt using a foreign exchange rate that reasonably approximates Rokt’s real cost to convert to US Dollars, whether or not such conversion actually happens;
- a reference to a statute or regulation includes amendments thereto;
- a reference to a section, clause, subclause or paragraph is a reference to a clause, subclause or paragraph of this Agreement;
- a reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made;
- a reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity; and
- the words “includes”, “including” and similar expressions are not words of limitation.
Data Processing Description
|Type of personal data||
|Special categories of personal data (if any)||None.|
|Contact points for data protection enquiries||
Rokt: Rokt Senior Corporate Counsel via [email protected]
Partner: As per Partner’s associated WooCommerce Account details.