Publicis Sapient Media Plan General Terms

1. Applicability

These Publicis Sapient Media Plan General Terms (“Media Plan General Terms”) apply to any media plan agreed to in writing by Sapient Corporation, d/b/a Publicis Sapient (“Agency”) and a client identified in such media plan (“Client”) (such media plans, “Media Plans”) which reference these Media Plan General Terms and in which the parties indicate their intention to have these Media Plan General Terms apply to the Media Plan. If a Media Plan references both a specific agreement between Publicis Sapient and Client (a “Specific Agreement”) and these Media Plan General Terms, both shall apply contemporaneously to the Media Plan. In the event of any conflict between the Specific Agreement and the Media Plan General Terms, the Media Plan General Terms shall control. Each Media Plan executed by Client and Agency is a binding contractual obligation which, unless otherwise provided by the terms of Section 1 above, automatically incorporates by reference these Media Plan General Terms to form (along with any Specific Agreement that may apply) one integrated agreement (the “Media Plan Agreement”). No Media Plan is effective unless and until executed by both parties.

2. Authorization

Agency (or Agency Affiliate) is authorized to purchase media, materials, or services from third parties as required to facilitate the Media Services (“Media Vendors”) on behalf of Client as agent for a disclosed principal, except in those markets where it is prohibited by law or is contrary to local market practice, in which event Client authorizes Agency to make purchases from Media Vendors pursuant to industry standard terms.

3. Orders

No expenditures should be made, expenses incurred, production work undertaken or media placed with a Media Vendor without a media authorization approved by Client in writing (“Order”).  Client shall have no responsibility with respect to any expenditure or commitment made to a Media Vendor without such approval.  Notwithstanding the foregoing, the parties understand and agree that in exigent circumstances, it may not be possible to obtain written approval prior to a media purchase.  In such circumstances, Client may give verbal authorization to Agency to purchase media, and such verbal authorization shall be binding.  Such verbal authorization shall be confirmed in writing within five (5) business days.

4. Media charges / billings

1. Media Vendor expenses will be billed and the timing of Client’s payments for such Media Vendor expenses shall be in a such a way so that Client’s payment will be received prior to the release of funds to Media Vendors and Agency will have no obligation to incur such expenses unless and until prepayment is made. In the event prepayments are made by Client based on estimated expenditures, Agency will reconcile such prepayments against the actual costs incurred.  In case of a payment dispute regarding amounts owed to Media Vendors, Client must inform Agency in writing of the specifics of any such dispute.  Client agrees it cannot withhold payment for the disputed amount if Agency has advanced monies to Media Vendors based on estimated media expenditures.
2. If advertising that was scheduled to run did not in fact run, or ran incorrectly, or there exists another problem or a media billing error, Agency shall advise Client. In such event, Agency will credit or appropriately adjust Client’s account on the next monthly billing following Agency’s discovery and resolution of said media airing problem or media billing error.
3. If Client requests media purchases from Agency which were not anticipated in the monthly billing schedule, Client understands and agrees that Agency may bill such charges separately from the regular monthly billing and that such charges shall be payable in accordance with the invoice and in no event less than thirty (30) days.
4. It is understood and agreed that Agency’s Affiliates may bill Client directly for media, out of pocket, and other pass through expenses payable hereunder and Client shall pay such Affiliates directly for such amounts, all in accordance with the terms hereof.

5. International services

1. The parties acknowledge that in certain markets, local laws, regulations, trade association rules, or media supplier requirements may require practices that differ from or otherwise contradict the terms described in these Media Plan General Terms.  For International Services, either party or its local Affiliate may enter into a scope of work or other local agreement that governs the relationship between the relevant parties in that market (each, a “Local Agreement”).  Each Local Agreement shall incorporate the terms of these Media Plan General Terms, which may be varied in the Local Agreement only to take into account applicable law in the relevant territory.
2. Unless otherwise agreed in writing by Agency, fees, costs, expenses and other amounts directly incurred and/or payable to a local market Affiliate for International Services shall be invoiced by, and paid directly to, such Local Market Affiliate.  For purposes of clarity, ancillary Services provided directly by Agency (including, without limitation, centralized management of local market Affiliate invoices, confirming invoice accuracy and/or other administrative tasks) may be invoiced and paid directly to Agency.
3. Unless otherwise agreed in writing by Agency, International Services shall be billed to Client in the currency in which it is billed to Agency or the Local Market Affiliate, and Client agrees to pay in the currency Client is billed.
4. If the invoice and payment structure for International Services required by Client results in additional tax liability to Agency or the Local Market Affiliate, Client shall be responsible for such costs.  If applicable, such costs shall be identified in the Statement of Work.
5. Foreign Exchange.
   1. F/X.  The cost of International Services may be more or less than the anticipated cost as a result of fluctuations in the rate of currency exchange (“F/X”).  Client acknowledges that Agency will not accept any arrangement which exposes Agency or local market Affiliates to risk of adverse F/X movements.  For the avoidance of doubt, media and other local market Affiliate pass-through expenses are subject to F/X gain/ loss and compulsory service fees incurred as a result of purchasing media in local currency.  F/X gains and losses occur between the time of media purchase and the date payment for such media purchase is received by Agency or the local market Affiliate.  Agency or the local market Affiliate will pass through any F/X gain/ loss and compulsory service fees incurred to Client at the time of payment is received.  Invoicing for International Services will include F/X gains/ losses and compulsory service fees incurred as a result of purchasing media outside of the United States in foreign currencies under the Agreement.  For budgeting and forecasting purposes, the applicable F/X rate for International Services shall be based on estimated exchange rates issued by Publicis Groupe Treasury.
   2. Currency Reserve.  Agency or the local market Affiliate will add to the media planning rates, and shall invoice to Client as part of the media billing process, a percentage of the media buy amount as a reserve against the media billings (the “Currency Reserve”) in order to account for F/X fluctuations for International Services.  The specific Currency Reserve percentage for a given Local Market shall be identified in the Statement of Work and/or within the media buy authorization executed by Client.
   3. Payment.  Currency Reserves shall be paid as invoiced with the accompanying media.
   4. Calculation.  The amount of F/X Client shall be responsible for is calculated as follows (“F/X Charge”):  the loss/ gain between (1) the USD exchange rate on the date media was purchased and (2) the USD exchange rate on the date corresponding payment for such media was received by Agency or the local market Affiliate.  The USD exchange rates used for the F/X Charge is based on the corresponding USD foreign exchange rate published on the website www.oanda.com on such date, or if such website does not exist at such time, then the rate published in the “Currency Rates” Section of the Wall Street Journal or any successor publication.
   5. Reconciliation.  Currency Reserves will be reconciled on a quarterly basis.  Agency will prepare quarterly reconciliations of the Currency Reserves collected and applicable F/X Charges, and will either credit or charge, as applicable, Client’s account on the next monthly billing cycle following the end of each quarter, for any adjustment determined by the reconciliation of the Currency Reserve against final F/X Charges.  Staffing of local resources will be based on the USD conversion rate as published by Publicis Groupe Treasury.

6. Sequential liability

If Client pays Agency in full and in a timely manner for Agency’s purchase of media for Client’s advertising, then Agency shall be solely responsible for paying Media Vendors.  If Client does not fully pay Agency in a timely manner for such media purchases, or if Client has not fully advanced payment to Agency for media purchases in a timely manner for Agency to make timely payments to such media for such purchases, then Client shall be liable for, and be responsible to pay the Media Vendors, and/or reimburse Agency, in full in a timely manner.  Client agrees that Agency, in making purchases from Media Vendors, is not responsible for paying for such advertising or any late fees incurred by such media buys unless Agency was fully and timely paid for such advertising. Agency will use commercially reasonable efforts to ensure that Media Vendors perform their obligations, but Agency does not guarantee any Media Vendor’s performance.  For the avoidance of doubt, Agency’s indemnification obligations to Client for any services provided by a Media Vendor under this Media Plan Agreement is limited to the pass-through third party indemnification provided to Agency by such Media Vendor.

7. Late fees

Client shall not be responsible for any late fees incurred as a result of Agency not billing Client in a timely fashion to avoid such late fees, or due to Agency otherwise not paying a media vendor when Client has made timely payment to Agency. If late fees are incurred as a result of Client not paying Agency in a timely manner, then Client shall be responsible for such late fees, if any.  Agency is obligated to bill Client in a timely fashion to avoid late charges.   

8. Legal review

For all media placed by Agency for Client pursuant to this Media Plan Agreement, Client is solely responsible for (i) obtaining and resolving legal, usage and talent issues (including, without limitation, claims substantiation issues) and for securing broadcast clearance, (ii) its final decision to approve the use and publication of any creative materials in connection with the Media Services, and (iii) ensuring that all representations and descriptions regarding Client’s business and its competitors’ organizations, products, services and industry comply with all legal and regulatory requirements, directives, and guidelines and are accurate and supportable by competent and relatable tests or other objective data.  Agency will provide the Media Services as directed by and in accordance with instructions from Client.  Client using its own legal advisors will remain fully and solely responsible for (i) its decision to approve any media campaigns or other services provided by Media Vendors, and (ii) interpreting and complying with applicable laws, rules, regulations or industry guidelines, including those related to data privacy and protection (“Laws”) with respect to its instructions to Agency and its authorization, provision, or use of any data in connection with the Services.  In the event Client directly or indirectly provides any data defined as “personal data”, “personally identifiable information”, “special categories of personal data” or “sensitive data” under the laws or regulations of any applicable jurisdiction (collectively “Client Personal Data”), Client shall ensure it has a lawful basis under all applicable laws for use of Client Personal Data as contemplated for the duration and purposes of the Media Services, including by securing all required and legally enforceable consents as required under applicable Laws.  Client has sole responsibility for the accuracy, quality, and legality of the Client Personal Data, and Client will promptly notify Agency of any necessary corrections, amendments, deletions, or restrictions in the Client Personal Data.  Client will take all appropriate measures to fulfill its obligations under applicable Laws, including without limitation by providing individuals with all required information and communications or other measures as required to facilitate the exercise of any applicable individual rights under such Laws.

9. Confidentiality

Client agrees not to divulge to any other agency, advertiser, or other third party whatsoever (including Client Suppliers) any Agency Confidential Information, including without limitation information or details of the Media Services, including the terms hereof, the media rates that Agency has negotiated on behalf of Client or any other Agency clients, Agency’s negotiation/buying philosophies, Agency’s systems, Agency’s proprietary research, and any other information related to Agency’s business without Agency’s prior written permission.  If Client engages the services of a creative agency, Client agrees to ensure that such creative agency adheres to this restriction. Client further acknowledges and agrees that accounts that Agency maintains with Media Vendors may contain information that is proprietary and confidential to Agency, such as (by way of example and not limitation) Agency’s negotiated rates with Media Vendors and Agency’s proprietary data organization methodologies, and such information constitutes Agency Confidential Information under the Specific Agreement.  If Client requests to provide any such Agency Confidential Information to a Client Supplier for the purpose of reviewing Client’s campaign spend or performance (“Review”), Client shall require the Client Supplier (which shall not be compensated in whole or in part based on its findings) to execute a non-disclosure agreement provided by the Agency prior to the Review that requires the Client Supplier to maintain such Agency Confidential Information in the utmost confidence at all times, to not use such Agency Confidential Information for any purpose other than the Review, and shall prohibit Client or Client Supplier from using the Agency Confidential Information for benchmarking purposes.  “Client Suppliers” means Client’s third party service providers, vendors, consultants, or suppliers who are providing services to Client pursuant to contracts between Client and such third parties.

10. Indemnity

In addition to each party’s indemnification obligations under the Specific Agreement, with regard to Media Services, Client agrees to defend, indemnify, and hold harmless Agency from any third party claims, losses, liabilities, fines, damages and costs (including reasonable attorneys’ fees) arising out (a) Client’s alleged or actual breach of this Media Plan Agreement, including any instructions, information, data, or materials supplied directly or indirectly by Client in connection with the Media Services or claims made by Media Vendors as a result of media commitments made pursuant to Client’s prior written authorization or instructions as provided for herein, or (b) death, personal injury, product liability or other claims or actions arising from the use of Client’s products and/or services.

11. Liability

Each party’s liability arising out of or related to this Media Plan Agreement shall be subject to the limitations on liability as set forth in the Specific Agreement.  Nothing contained in the Specific Agreement is intended to diminish or limit Client’s responsibilities to Media Vendors pursuant to authorized commitments made by Agency on Client’s behalf as set forth in this Media Plan Agreement.  Client shall promptly advise Agency in the event it learns of any third party claim or investigation relating to any issues related to the Media Services hereunder.  Client shall reimburse Agency for all costs, expenses, fines or penalties of any nature (including reasonable attorney’s fees) incurred by Agency due to any third party investigation into the acts or practices of Client in connection with the Media Services, including Agency’s response to or compliance with any third party subpoena, inquiry, or other legal or regulatory request for information related to Client, its business or marketing activities.  NOTHING CONTAINED HEREIN IS INTENDED TO DIMINISH OR LIMIT CLIENT’S OBLIGATIONS TO MEDIA VENDORS PURSUANT TO COMMITMENTS MADE BY AGENCY ON CLIENT’S BEHALF AS SET FORTH IN THE SPECIFIC AGREEMENT.  CLIENT ACKNOWLEDGES THAT FOR PERSONAL DATA CLAIMS OF ANY NATURE ARISING OUT OF SERVICES PROVIDED BY MEDIA VENDORS, SUCH PERSONAL DATA CLAIMS ARE GOVERNED BY AND SUBJECT TO THE TERMS OF ANY APPLICABLE AGREEMENTS BETWEEN AGENCY AND SUCH MEDIA VENDORS WHICH SHALL BE DEEMED TO STATE THE ENTIRE SET OF OBLIGATIONS, RESPONSIBILITY AND LIABILITY OF AGENCY WITH RESPECT TO SUCH PERSONAL DATA CLAIMS.  AGENCY HEREBY ASSIGNS TO CLIENT ALL WARRANTIES AND INDEMNITIES PROVIDED BY MEDIA VENDORS UNDER SUCH AGREEMENTS TO THE MAXIMUM AMOUNT PERMITTED BY LAW AND SUCH AGREEMENTS, IT BEING UNDERSTOOD THAT SUCH WARRANTIES AND INDEMNITIES ARE DEEMED EXCLUSIVELY PROVIDED BY SUCH MEDIA VENDORS AND AGENCY IS NOT THE PARTY DEEMED TO HAVE MADE SUCH WARANTIES OR INDEMNITIES.

12. Disclaimer

CLIENT ACKNOWLEDGES THAT ADVANCES IN THE UTILIZATION OF PERSONAL DATA IN CONNECTION WITH ONLINE ADVERTISING, INCLUDING THE ABILITY TO BUILD VERY TARGETED PROFILES FOR THE PURPOSE OF TARGETING ADS TO CONSUMERS, MAY BRING HEIGHTENED SCRUTINY TO CLIENT AS AN ADVERTISER FROM THE PRESS AND CONSUMER GROUPS, REGULATORS, PRIVACY ACTIVISTS, LEGISLATORS, INDUSTRY GROUPS AND SELF-REGULATORY BODIES.  IN FURTHERANCE OF THE FOREGOING, CLIENT ACKNOWLEDGES AND AGREES THAT ITS AUTHORIZATION, PROVISION OR USE OF ANY PERSONAL DATA IN CONNECTION WITH THE SERVICES CARRIES CERTAIN INHERENT RISKS AND THAT AGENCY’S ACT OF EXECUTING THE SERVICES ON BEHALF OF CLIENT IN ACCORDANCE WITH CLIENT’S AUTHORIZATION AND INSTRUCTIONS DOES NOT CONSTITUTE NEGLIGENCE, ERRORS OR OMISSIONS, WILLFUL MISCONDUCT OR A BREACH OF AGENCY’S OBLIGATIONS UNDER THE SPECIFIC AGREEMENT.

13. Value based solutions

There may be times that the Agency or its Affiliates, as an additional service to Client, may offer Client proprietary technology or performance/value-based media (media that is offered at rates or other terms that provide special benefits to Client, e.g., Apex Exchange) for purchase (“Value Based Solutions”).  The costs for the Value Based Solutions include and incorporates media costs, technology costs as well as other costs as well and fees of agency/its affiliates, associated with data, staffing talent and technology utilized to obtain the media and technology.  The use of these items are not mandatory, the invoices for all costs and fees will be issued as a single aggregated invoice based on aggregated delivery and will not be separately detailed by costs or fees; and these authorized expenditures are not subject to audit or transparency requirements.  Client further acknowledges that certain Value Based Solutions consisting of platform technologies or data products or services (e.g. Publicis People Cloud or other Publicis Spine products) may require different or additional terms from those set forth herein.  In the event Client opts in to use such products, the parties will negotiate such different or additional terms in good faith at that time.

14. Changes

Agency may amend these Media Plan General Terms at its discretion, at any time and for any reason. Such changes shall be made effective by their posting at www.sapient.com, along with the effective date of the new version (“Version Effective Date”). Such changes shall not have retroactive effect and shall apply only to Media Plans executed on or after the Version Effective Date. Media Plans executed before the most recent Version Effective Date shall be subject to the version of the Media Plan General Terms posted as of the date of execution of the applicable Media Plan.

15. Version effective date

The Version Effective Date of these Media Plan General Terms is May 14, 2019.