(Experian - Movable Ink)
This Statement of Work #2 (“SOW”), dated November January __, 20123 (“Effective Date”)______is entered into between Crackle, Inc., (“Crackle”) a subsidiary of Sony Pictures Television Inc. and Experian Marketing Solutions, Inc. ("Experian"). The parties hereby agree to be bound by, and incorporate by reference herein, the terms and conditions of the Services Agreement entered into between Sony Network Entertainment International LLC ("SNEI") and Experian, dated December 2, 2011 and SOW #1 between Crackle, Inc., a subsidiary of Sony Pictures Television, Inc. and Experian dated ______(collectively, the "SNEI Agreement"); provided, however, that for purposes of this Agreement, "Crackle" shall replace "SNEI" in all instances in which "SNEI" is used in the SNEI Agreement and its E-Mail Services Schedule.
1. Services:
Experian will provide Crackle access to Movable Ink applications, as further described in Attachment 1 attached hereto and incorporated herein by this reference, to facilitate real time, dynamic content in Crackle emails (“Services”). Crackle may use unlimited image embed codes in a single email for up to ten million (10,000,000) sends per month. Movable Ink shall grant Crackle access to Movable Ink Advanced Analytics.
2. Term:
This SOW shall commence as of the Effective Date and continue for a period of thirty six (36) months unless terminated in accordance with the SNEI Agreement (the “SOW Term”).
3. Requirements & Deliverables:
· Experian will train Crackle and account team on use of the Movable Ink tools. Experian will provide 1 onsite training session to Crackle, and will provide ongoing technical support thereafter on a 24/7 basis.
· Movable Ink shall provide fourteen (14) included service hours per year.
· Client shall provide applicable instructions for application set up for each campaign
· Movable Ink will provide image embed code to Experian
4. Fees:
Recurring Fees: / FeeLicense (per month, includes 10,000,000 sends) / $2,250.00
Overage CPM (per thousand) / $0.53
Optional Services:
Additional Service Hours: / $150
Development Hours: / $300
5. Service Levels: Experian shall provide the Services pursuant to the service level requirements set forth in Attachment 2, attached hereto and incorporated herein by this reference.
6. Grant of License. Experian hereby grants to Crackle a renewable, worldwide, non-exclusive, royalty-free, license to access and use the Services during the SOW Term. Such license includes the right to use and any “User Interface”, “API’s”, “cookies”, and “add-ons” (as such are commonly defined in the Information Technology industry) or other software required to access and use the Services.
7. Indemnification: In addition to the indemnification obligations set forth in the SNEI Agreement, with respect to this SOW, Experian shall defend indemnify and hold harmless Crackle and each of its subsidiaries, parents, employees, officers, directors, affiliates, agents, successors, and assigns from and against any and all loses, damages, costs and expenses, including reasonable attorneys’ fees and expenses incident thereto, arising from any suit, claim or demand by a third party to the extent arising as a result of Experian’s breach of Exhibit C Confidentially Agreement Regarding Receipt of Personal Information and Exhibit D Information Security Schedule.
8. Governing Law / Arbitration: Section 16.G. of the SNEI Agreement shall be deleted for purposes of this SOW and replaced with the following:
G. This SOW shall be deemed to have been made and execute in the State of California and any dispute arising hereunder shall be resolved in accordance with the laws of the State of California, without reference to its conflict of laws principles. All actions or proceedings arising in connection with, touching upon or relating to this Agreement, the breach thereof and/or the scope of the provisions of this Section (a “Proceeding”) shall be submitted to JAMS (“JAMS”) for binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less (as applicable, the “Rules”) to be held solely in Los Angeles, California, U.S.A., in the English language in accordance with the provisions below.
(a) Each arbitration shall be conducted by an arbitral tribunal (the “Arbitral Board”) consisting of a single arbitrator who shall be mutually agreed upon by the parties. If the parties are unable to agree on an arbitrator, the arbitrator shall be appointed by JAMS. The arbitrator shall be a retired judge with at least ten (10) years experience in commercial matters. The Arbitral Board shall assess the cost, fees and expenses of the arbitration against the losing party, and the prevailing party in any arbitration or legal proceeding relating to this Agreement shall be entitled to all reasonable expenses (including, without limitation, reasonable attorney’s fees). Notwithstanding the foregoing, the Arbitral Board may require that such fees be borne in such other manner as the Arbitral Board determines is required in order for this arbitration clause to be enforceable under applicable law. The parties shall be entitled to conduct discovery in accordance with Section 1283.05 of the California Code of Civil Procedure, provided that (a) the Arbitral Board must authorize all such discovery in advance based on findings that the material sought is relevant to the issues in dispute and that the nature and scope of such discovery is reasonable under the circumstances, and (b) discovery shall be limited to depositions and production of documents unless the Arbitral Board finds that another method of discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the information sought.
(b) There shall be a record of the proceedings at the arbitration hearing and the Arbitral Board shall issue a Statement of Decision setting forth the factual and legal basis for the Arbitral Board's decision. If neither party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the Arbitral Board's decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles County Superior Court or, in the case of Experian, such other court having jurisdiction over Experian, which may be made ex parte, for confirmation and enforcement of the award. If either party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the award of the Arbitral Board shall be appealed to three (3) neutral arbitrators (the "Appellate Arbitrators"), each of whom shall have the same qualifications and be selected through the same procedure as the Arbitral Board. The appealing party shall file its appellate brief within thirty (30) days after its written notice requesting the appeal and the other party shall file its brief within thirty (30) days thereafter. The Appellate Arbitrators shall thereupon review the decision of the Arbitral Board applying the same standards of review (and all of the same presumptions) as if the Appellate Arbitrators were a California Court of Appeal reviewing a judgment of the Los Angeles County Superior Court, except that the Appellate Arbitrators shall in all cases issue a final award and shall not remand the matter to the Arbitral Board. The decision of the Appellate Arbitrators shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles County Superior Court or, in the case of Experian, such other court having jurisdiction over Experian, which may be made ex parte, for confirmation and enforcement of the award. The party appealing the decision of the Arbitral Board shall pay all costs and expenses of the appeal, including the fees of the Appellate Arbitrators and including the reasonable outside attorneys' fees of the opposing party, unless the decision of the Arbitral Board is reversed, in which event the costs, fees and expenses of the appeal shall be borne as determined by the Appellate Arbitrators.
(c) Subject to a party's right to appeal pursuant to the above, neither party shall challenge or resist any enforcement action taken by the party in whose favor the Arbitral Board, or if appealed, the Appellate Arbitrators, decided. Each party acknowledges that it is giving up the right to a trial by jury or court. The Arbitral Board shall have the power to enter temporary restraining orders and preliminary and permanent injunctions. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the Arbitral Board’s award; provided, however, that prior to the appointment of the Arbitral Board or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief in a court of competent jurisdiction in Los Angeles County, California or, if sought by Crackle, such other court that may have jurisdiction over Experian, without thereby waiving its right to arbitration of the dispute or controversy under this section. All arbitration proceedings (including proceedings before the Appellate Arbitrators) shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. Notwithstanding anything to the contrary herein, Experian hereby irrevocably waives any right or remedy to seek and/or obtain injunctive or other equitable relief or any order with respect to, and/or to enjoin or restrain or otherwise impair in any manner, the production, distribution, exhibition or other exploitation of any motion picture, production or project related to Crackle, its parents, subsidiaries and affiliates, or the use, publication or dissemination of any advertising in connection with such motion picture, production or project. The provisions of this Section shall supersede any inconsistent provisions of any prior agreement between the parties.
9. Notices. Any notices that Experian provides to Crackle pursuant to Section 11 of the SNEI Agreement, shall be sent to the following: Crackle, Inc., 10202 West Washington Boulevard, Culver City, CA 90232, Attention: Executive Vice President, Legal Affairs, Fax no.: 1-310-244-2169, with a copy to: Sony Pictures Entertainment Inc., 10202 West Washington Boulevard, Culver City, CA 90232, Attention: General Counsel, Facsimile No.: 1-310-244-0510.
10. General. To the extent of any conflict between this SOW and the SNEI Agreement, this SOW shall control. This SOW may be executed in one or more counterparts, each of which shall be as effective as one original and all of which, when taken together, shall constitute one and the same instrument. Executed copies of this SOW may be delivered electronically or by facsimile.
General/Miscellaneous:
Any work not found within the above scope shall be considered to be additional and subject to additional charges.
IN WITNESS WHEREOF, Crackle and Experian have caused this SOW to be executed by their duly authorized representatives as of the Effective Date.
Experian Marketing Solutions, Inc. / Crackle, Inc.By: / By:
Name: / Name:
Title: / Title:
Attachment 1
Description of Services
Subject to change at any time
Streaming, Real-Time Dynamic Content Functionality (Movable Ink)
Application Definitions:
Countdown Timer
Shows days, hours, minutes, and seconds using a countdown clock. The countdown timer is customizable within the Movable Ink dashboard by editing CSS and HTML to create the desired appearance. An image can be used as the background of the countdown timer, and the digits are then overlaid on this background. Movable Ink delivers the entire clock into the email as a single image-embed code. To set up, you enter the start and end of the countdown period (example: Start 6/1/2012 at 10:00:00AM EST and ends 6/2/2012 09:00:00AM EST) in the dashboard. The timer is hosted on the MI server and always running, so when an email is opened it will show the exact time left on the clock at the moment. When including the seconds, it is possible for the countdown timer to stream for 60 seconds while the email is opened. The streaming feature is not available in Outlook. The app is programmed so that when the timer expires, it will display 00:00:00. If desired, it is possible to swap the countdown timer image with another image with additional custom work.
Creative Optimizer
Allows for real-time automated A/B test of an image while the campaign is running. You must supply different images to test and upload them in the Movable Ink dashboard. Version A and Version B gets served randomly during the ‘experiment’ phase of the campaign. The ‘experiment’ list size is a statistically significant number of impressions determined by the list size of that campaign and the estimated open rate. At the end of this phase, Movable Ink will determine the winning version A or B based on the version that had a higher CTR %. The winning version will then automatically become the image that is served for the rest of the campaign. People who saw the losing image during the ‘experiment’ phase will see the winning image in their email if they went back in their inbox to reopen that email. The link for version A and version B are the same, it is only in the Movable Ink dashboard that you would be able to see how many impressions and clicks there were on each version during the experiment phase. There is no limit on how many different versions you can test, but it is recommended to keep it around 2-3.