1.1 “Platform” means the software-as-a-service online insights platform hosted and made available by Zeenk, as updated by Zeenk from time to time, that may be used by Zeenk’ customers to report on Advertisements and Sales displayed to end users of Properties through use of such customer’s account credentials for such Properties.
1.2 “Advertisements” means online display advertisements in formats that are compatible with the Platform.
1.4 “Applicable Data Protection Law” means any and all applicable privacy and data protection laws (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.
1.5 “Authorized Users” means Customer’s employees and contractors who are authorized to access and use the Platform. The maximum number of Authorized Users is set forth in the Order Form.
1.6 “Base Subscription Fee” means the fee for the selected Pricing Package as set forth in the Order Form, if applicable. All fees are payable in US dollars (USD).
1.7 “Billing Period” shall have the meaning set forth in the Order Form.
1.8 ““controller”, “processor”, “data subject”, “personal data”, and “processing” (and “process”) shall have the meanings given in Applicable Data Protection Law.
1.9 “End Date” shall have the meaning set forth in the Order Form.
1.10 “EU Data Protection Law” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”), and (ii) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (“e-Privacy Directive”), as well as any national implementations of such laws (as may be amended, superseded or replaced).
1.11 “First Ad Spend” means the date during the Term upon which Customer’s initial Spend for Advertisements inserted through use of the Platform on a Property, is processed through the Platform.
1.12 “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral(moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
1.13 “Law” means any law, rule or regulation (including Applicable Data Protection Law).
1.14 “Model Clauses” means Set II of the Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers) approved with European Commission Decision 2004/915/EC of 27 December 2004, set forth in Exhibit B.
1.16 “Service” means the provision of Zeenk software available on a software as a service (SaaS) basis via the Internet on Zeenk tool and website and/or by any other means via which the service is made available or can be used.
1.17 “Spend Allotment” means the applicable Spend allotment, if any, set forth in the Order Form.
1.18 “Subscription Fee” shall have the meaning set forth in the Order Form.
1.19 “Properties” means the third party owned and operated web sites, mobile properties and/or other online services on which the Platform is capable of serving Advertisements, including, without limitation, the Properties set forth in the Order Form.
1.20 “Site”means a specified location within the Platform where Customer’s budget pools, strategy groups and Advertisements are stored. Sites may be organized by specific product, application and/or geography. All pacing, pixelation and reporting is conducted at the Site level.
1.21 “Spend” means the aggregate amounts payable by Customer to third parties (such as the operators of the Properties) for Advertisements inserted through use of the Platform, as measured by the Platform in Pacific Standard Time. For clarity, the “Spend” for a given Billing Period is based on Customer’s third party payment obligations for Advertisements inserted through use of the Platform, accruing during such Billing Period, regardless of when such amounts are actually due.
1.22 “Start Date” shall have the meaning set forth in the Order Form.
1.23 “Term” shall have the meaning set forth in section 5.1.
1.25 “Third Party Services” shall have the meaning set forth in section 2.7.
1.26 “Usage Fee”means the fee set forth in the Order Form based on Customer’s actual Spend through the Platform, as applicable.
2. Use of Platform; Authorized Users
2.1 Access. Subject to compliance with all terms and conditions of this Agreement, Customer shall have the right during the Term to allow Authorized Users to access and use the Platform for purposes of causing the insertion of Advertisements within Properties for which Customer has the necessary credentials, solely in the manner enabled by the Platform and in accordance with the terms of this Agreement. For the avoidance of doubt, Customer’s usage of the Platform is limited to the Properties, maximum number of Authorized Users, and Sites specified in the Order Form, as such Order Form may be amended from time to time. Customer agrees to comply with all Laws and applicable Third Party Service terms and policies in connection with its use of the Platform. No use of the Platform except as expressly authorized hereunder is permitted without Zeenk’ prior written consent. Zeenk will host the Platform on its servers and equipment. Customer is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Customer’s access to and use of the Platform. All persons who access the Platform hereunder will be required to have unique identifications and passwords as supplied by Zeenk. Customer will maintain the Platform and its access to and use of the Platform in confidence and take reasonable steps to prevent its disclosure to anyone other than Authorized Users (if Zeenk provides its written consent to disclosure other than as provided above, such consent shall be expressly conditioned upon the third party to whom the disclosure is made agreeing to the confidentiality obligations provided in this Agreement). Without limiting the generality of the foregoing, (i) Customer shall only permit its Authorized Users to have access to the Platform; (ii) Customer shall require all employees and contractors that engage directly or indirectly with the Platform to abide by the confidentiality obligations set forth in this Agreement; and (iii) Customer shall not allow its personnel or contractors to describe the Platform to third parties or allow third parties to view the Platform. Customer is responsible for ensuring that all users comply with this Agreement. All acts and omissions of any party who engages with the Platform as a result of the Customer’s action or inaction shall be deemed to be acts and omissions of Customer. Zeenk reserves the right to modify and update the features and functionality of the Platform from time to time. Certain additional features may only be available for an additional charge. Customer agrees not to launch commercial use of the Platform with any Properties prior to implementing Zeenk’ pixels in accordance with Zeenk’ documentation and successfully completing Zeenk’ testing and validation process.
2.2 Restrictions. Customer acknowledges that use of the Platform is provided for Customer’s benefit only, and agrees not to permit any person other than Authorized Users to access or use the Platform, other than third party contractors for which Zeenk has given its prior written consent (which consent may be withheld in Zeenk’ discretion and will be contingent upon such contractor entering into an agreement directly with Zeenk). Customer agrees not to attempt to or allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense, transfer or make the Platform available to any third party or use the Platform on a service bureau basis, (ii) decompile, reverse engineer, or disassemble the Platform, (iii) create derivative works based on the Platform; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Platform or during the use and operation thereof; (v) use the Platform in any manner that violates any Law, third party right or the terms and conditions applicable to any Property. Customer acknowledges and agrees that any violation of this Section 2.2 would cause irreparable harm to Zeenk for which there is no adequate remedy at law, and that Zeenk will be entitled to seek immediate injunctive relief prohibiting such violation, in addition to any and all other rights and remedies available at law or equity. In addition, Zeenk may from time to time adopt generally applicable rules for permitted and appropriate use of the Platform and may update them from time to time upon written notice to Customer. Customer will be bound by any such rules thirty (30) days after such written notice to Customer.
2.3 Suspension/Termination. Zeenk may terminate Customer’s access to or use of the Platform and/or terminate this Agreement at any time if: (i) in the sole discretion of Zeenk, such action is necessary to prevent errors or harm to any system or network, or to limit Zeenk’ liability; or (ii) Customer attempts to access or use the Platform in an unauthorized manner, including without limitation any attempt to gain access to the accounts of other Zeenk customers or use that violates the terms and conditions of any Property or any Law or third party right.
2.4 Availability. Zeenk shall be responsible for operating the servers that make the Platform available, and shall maintain availability of the Platform of at least 99%, calculated monthly on a per-minute basis. Customer acknowledges and agrees that the Platform or material functionality thereof may be unavailable from time to time due to (i) failure of access circuits to the hosting service backbone or systemic internet failures; (ii) maintenance and update procedures or repairs; or (iii) causes beyond the control of Zeenk, including, without limitation, interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion, technical issues attributable to a Property or other failures and that unavailability caused by any of the foregoing shall not be considered in determining Zeenk’ compliance with the foregoing. In the event that the Platform is not available in a given month for at least 99% of the time for any reason(s) other than as set forth in the foregoing (i), (ii) or (iii), Customer may, as its sole and exclusive remedy and Zeenk’ exclusive liability for unavailability of the Platform, receive a service credit in accordance with the applicable service credit percentages set forth in the Service Level Agreement in Exhibit A.
2.5 Advertisements. Customer acknowledges and agrees thatZeenk has no obligation to monitor or edit the Customer’s Advertisements or content contained within or made available or linked from any Advertisements or Properties. Notwithstanding the foregoing, Zeenk may reject or remove any Advertisement which Zeenk reasonably believes may expose Zeenk to liability or that may violate any Law or the terms and conditions of an applicable Property. Customer acknowledges and agrees that it may not use the Platform in connection with any Properties or Advertisements containing or promoting illegal activities, hate speech, pornography, profanity, obscenity or sexually explicit material.Without limiting the generality of the foregoing, Customer shall ensure that all Advertisements are in accordance with the advertising criteria, specifications and policies (including content limitations, technical specifications, privacy policies, user experience policies, community standards regarding obscenity or indecency, other editorial or advertising policies) of the Properties on which the Advertisements are to run. Customer represents and warrants to Zeenk that all Advertisements supplied by or on behalf of Customer, including any revisions to such Advertisements, comply with all applicable Laws, and Customer is fully authorized to publish, and authorizes Zeenk to publish on its behalf, all Advertisements (including all revisions).
2.6 Ad Data. Notwithstanding any other term or condition of this Agreement, Customer agrees that Zeenk may use, process and disclose any data (including personal data) collected or received in connection with the operation of the Platform and Customer’s use thereof (“Ad Data“) for the following purposes: (i) Zeenk may use such Ad Data for purposes of providing Customer with use of the Platform hereunder and for Zeenk’ internal business purposes, including without limitation, to further improve the Platform; (ii) Zeenk may disclose such Ad Data to its third party service providers that assist it in making the Platform available as is reasonably necessary for such assistance; (iii) Zeenk may disclose such Ad Data as may be required by Law or legal process; and (iv) Zeenk may use and disclose such Ad Data for any lawful business purpose where it is aggregated with data unrelated to Customer and is not specifically identified as relating to Customer (“Aggregate Data“). All analyses or other uses of Aggregate Data made by Zeenk shall be Zeenk’ intellectual property.
Each party shall implement and at all times maintain appropriate technical and organizational measures to protect the Ad Data (including the personal data) from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Ad Data (including personal data), as well as from other unlawful forms of processing (“Security Incident“). In the event that a party suffers a confirmed Security Incident, it shall notify the other party without undue delay and both parties shall cooperate in good faith to agree and action such measures as may be necessary to mitigate or remedy the effects of the Security Incident.
Zeenk may appoint third party processors to process personal data (as described in this section 2.6.) for the purposes specified in this Agreement, provided that such processors: (a) agree in writing to process the respective personal data in accordance with Zeenk’ documented instructions; (b) implement appropriate technical and organizational security measures to protect the respective personal data against a Security Incident; and (c) otherwise provide sufficient guarantees that they will process the respective personal data in a manner that will meet the requirements of Applicable Data Protection Law.
Where the EU Data Protection Law applies, neither party shall process any personal data (as described in this section 2.6.) (nor permit any such personal data to be processed) in a territory outside of the European Economic Area (“EEA“) unless it has taken such measures as are necessary to ensure the transfer is in compliance with the EU Data Protection Law. Such measures may include (without limitation) transferring the respective personal data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorization in accordance with Applicable Data Protection Law, to a recipient in the United States that has certified compliance with the EU-US Privacy Shield framework, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission. To the extent Zeenk and Customer wish to rely between themselves on standard contractual clauses for transfer of personal data to a country outside of the EEA, the parties agree to use and execute the Model Clauses.
Upon termination or expiry of this Agreement Zeenk may continue to process personal data for the purposes described in this Agreement provided that such processing complies with the requirements of this section 2.6. and Applicable Data Protection Law.
3.1 Fees. Customer agrees to pay Zeenk the fees set forth in the Order Form (the “Fees”). All determinations of Spend and other relevant metrics shall be in accordance with the Platform’s measurements.
3.2 Payment. Subscription Fees are invoiced by Zeenk upon the Start Date and at the beginning of each subsequent Billing Period. Usage Fees if applicable, are invoiced by Zeenk in arrears at the end of each Billing Period based on Customer’s actual Spend through the Platform.
3.3 Payment Terms. Customer agrees to pay each invoice within thirty (30) days of receipt. All payments will be made in U.S. dollars. Any amounts due Zeenk under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. Customer shall pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Zeenk’ net income.
As between the parties, Zeenk owns all right, title and interest (including all Intellectual Property Rights) in and to the Platform and any software, technology, materials and information owned by Zeenk prior to the Effective Date or created, authored, developed, conceived or reduced to practice after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of any Zeenk software, technology, materials, information or Intellectual Property Rights to Customer. Customer is not required to provide to Zeenk any ideas, feedback or suggestions relating to Zeenk’ products or services (“Feedback”). To the extent Customer does provide any such Feedback, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Zeenk and acknowledges that Zeenk may freely use and exploit such Feedback without payment to Customer.
5. Term; Termination
5.1 Term. This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect for the period set forth in the Order Form (the “Initial Term”), with each subsequent renewal period being a “Renewal Term”.
(a) Customer may terminate this Agreement at the end of the Initial Term or any subsequent Renewal Term, as applicable, for any reason or no reason by providing Zeenk with at least seven (7) days written notice of termination prior to the end of the Initial Term or Renewal Term as applicable.For clarification and avoidance of doubt, if Customer’s Order Form includes a Pilot Period, the Initial Term is the 3-month Pilot Period and the Renewal Term is a 12-month non-terminable Annual Period.
(b) Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party. Either party may terminate this Agreement immediately if the other party breaches its intellectual property rights.
(c) Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
5.3 Effect of Termination. All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 2.2, 2.5, 2.6, 2.7, 3 (with respect to accrued but unpaid amounts), 4, 5.3, and 6 through 11 shall survive expiration or termination of this Agreement.
6. Representations and Warranties
6.1 Mutual. Each party represents, warrants and covenants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
6.2 Customer. Customer represents, warrants and covenants to Zeenk that: (i) it has all rights, title, and interest in and to the Advertisements and proper credentials for Properties in connection with which it utilizes the Platform that are necessary for such use; (ii) it shall not use the Platform in relation to any activity that would violate any Law, including without limitation Applicable Data Protection Law (such as applicable FTC regulations, COPPA, CAN-SPAM, and EU Data Protection Law); (iii) it shall comply with all terms and conditions applicable to the Properties, including without limitation any restrictions on arbitrage activities or on the sale of advertising on a fixed CPC or CPM basis; and (iv) the Advertisements do not and will not (x) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third party or (y) slander, defame, or libel any person. Customer shall establish billing credentials with the applicable Properties and Customer will be billed directly by the Property for the impression expense generated through the Platform separately from the fees payable to Zeenk. Customer agrees to timely pay the Properties for such expenses.
7.1 By Zeenk. Subject to Sections 7.3 and 7.4, Zeenk agrees to: (x) defend and/or settle any claim, demand, action, suit or proceeding made or initiated by a third party (a “Claim”) against Customer or its officers, directors or employees (“Customer Indemnitees”) alleging that the Zeenk technology underlying the Platform infringes such third party’s United States patent, copyright, trademark or trade secret (an “IP Claim”) or that Zeenk has breached any of its representations or warranties hereunder; and (y)pay those amounts finally awarded by a court of competent jurisdiction against the Customer Indemnitees (including damages, interest, costs, and attorneys’ fees) or payable pursuant to a settlement agreed to by Zeenk with respect to such Claim. If Zeenk, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Zeenk may, at its option, (a) obtain a license from such third party claimant that allows Customer to continue the use of the Platform, (b) modify or replace the Platform (or applicable portions thereof) so as to be non-infringing, or (c) if neither (a) nor (b) is available to Zeenk on commercially reasonable terms, terminate this Agreement upon written notice to Customer. This Section 7.1 sets forth the entire liability of Zeenk and the sole and exclusive remedy of Customer in the event of any claim that the Platform infringes any third party Intellectual Property Right.
7.2 By Customer. Subject to Sections 7.3 and 7.4, Customer agrees to: (x) defend and/or settle any Claim against Zeenk or its officers, directors or employees (“Zeenk Indemnitees”) alleging Customer’s breach of any representation or warranty hereunder; and (y) pay those amounts finally awarded by a court of competent jurisdiction against the Zeenk Indemnitees (including damages, interest, costs, and attorneys’ fees) or payable pursuant to a settlement agreed to by Customer with respect to such Claim.
7.3 Procedure. Each party’s indemnity obligations are conditioned on the indemnified party (“Indemnitee”) providing the indemnifying party (“Indemnitor”) with (i) prompt written notice of any third-party Claim (provided, however, failure to give notice does not relieve the Indemnitor of its indemnification responsibilities unless Indemnitee is materially damaged by the failure to provide prompt notice), (ii) sole control over the defense of the Claim and any related settlement negotiations, provided that the Indemnitor will not enter into any settlement that imposes obligations or restrictions on the Indemnitee (other than obligations to pay monies which are to be satisfied by the Indemnitor) without the Indemnitee’s prior written consent, such consent not to be unreasonably withheld, delayed or conditioned, and (iii) reasonable cooperation, at the Indemnitor’s expense, in such defense or settlement. The Indemnitee shall take reasonable measures to mitigate any and all costs and damages that may arise from any claim subject to indemnity.
7.4 Exclusions. The Indemnitor will not be obligated under Section 7.1 or Section 7.2 (as applicable) to the extent the Claim arises from: (i) the Indemnitee’s breach of this Agreement or violation of any Law; (ii) the combination of the Indemnitor’s products or services with any technology, materials or services not provided by the Indemnitor where the Claim would not have arisen but for the combination; or (iii) the negligence or willful misconduct of the Indemnitee or its officers, directors or employees.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. ZEENK AND ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. ZEENK DOES NOT WARRANT THE RESULTS OF USE OF THE PLATFORM. CUSTOMER AND ITS USERS ASSUME ALL RESPONSIBILITY FOR THEIR IMPROPER USE OF THE PLATFORM, AND ZEENK ASSUMES NO RESPONSIBILITY FOR SUCH IMPROPER USE.
9.1 General. “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or that the receiving party should reasonably consider as confidential due to its content and/or the circumstances surrounding its disclosure. Confidential Information shall include, without limitation, computer programs, code, algorithms, know-how, methodology, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), and other technical, business, pricing and fee schedules. The features and functionality of the Platform, as well as any information regarding planned modifications or updates thereto or future Zeenk products and services, and the Platform’s operations, functionality, methodology, results and look and feel constitute Confidential Information of Zeenk. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure. Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement. Each party shall not disclose the other party’s Confidential Information to any person or entity except to those of its employees and contractors that need to know such Confidential Information for the purposes of this Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party If either party, its employees or contractors breaches or threatens to breach the obligations of this Section 9, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
9.2 Platform.Customer will maintain the Platform and its access to and use of the Platform in confidence and take reasonable steps to prevent disclosure of the features and functionality of the Platform to third parties. Without limiting the generality of the foregoing: (i) Customer shall require all Users to agree to abide by the confidentiality obligations set forth in this Agreement during and after their employmentor engagement with Customer; and (ii) Customer shall not allow its Users to describe the Platform to third parties or allow third parties to view the user interface of the Platform. Customer is responsible for ensuring that all Users comply with this Agreement.
10. Limitation of Liability
EXCEPT WITH RESPECT TO SECTION 7 (INDEMNITY), OR EITHER PARTY’S BREACH OF SECTION 9 (CONFIDENTIALITY),NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH RESPECT TO SECTION 7.1 (INDEMNITY BY ZEENK) OR A BREACH OF SECTION 9 (CONFIDENTIALITY): (A) IN NO EVENT WILL ZEENK’ LIABILITY AND DAMAGES FOR ANY MATTER RELATING TO A SPECIFIC ADVERTISEMENT CAMPAIGN (AS DEFINED BY A PARTICULAR SITE ID ON THE PLATFORM) EXCEED THE SUBSCRIPTION FEES PAYABLE TO ZEENK UNDER THIS AGREEMENT DURING THE MONTH PRECEDING THE DATE OF THE CLAIM; AND (B) IN ALL OTHER CIRCUMSTANCES, EACH PARTY’S TOTAL LIABILITY AND DAMAGES UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE SUM OF THE TOTAL FEES PAYABLE TO ZEENK UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 10 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11.1 Publicity. During the Term, Zeenk shall have the right to reproduce and display Customer’s trademarks on Zeenk’ website and marketing materials for purposes of identifying Customer as a Zeenk customer.
11.2 Nonsolicitation of Employees. During the Term and for one (1) year after the end of the Term, to the maximum extent permitted by Law, neither party nor its affiliates (with Customer’s affiliates including any third party that Customer uses or consults with in connection with its use of the Platform or Zeenk services) will directly solicit for hire as an employee or engagement as an independent contractor any employee or contractor of the other party. Nothing herein shall preclude generalized searches by either party for employees through the use of advertisements in any media (including on job or message boards) that are not specifically directed at the employees or contractors of the other party.
11.3 Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
11.4 Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that Zeenk may assign its rights and obligations under this Agreement without the consent of Customer in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
11.5 Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
11.6 Notices. All notices under the terms of this Agreement shall be given in writing and sent by internationally recognized overnight carrier with delivery confirmation or shall be delivered by hand to the addresses noted in the preamble of this Agreement. Notices to Zeenk shall be sent to the attention of “Legal Department” and notices to Customer shall be sent to the address listed on the Order Form. All notices shall be presumed to have been received when they are hand delivered, or on the business day following the day of delivery by overnight carrier.
11.7 Construction. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
11.8 Severability; Waiver; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
11.9 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts without reference to conflicts of laws principles. The parties agree that the federal and state courts located on Boston, Massachusetts will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively. Notwithstanding the foregoing, nothing shall prevent Zeenk from commencing legal proceedings for the purpose of seeking an injunction or similar equitable remedy with respect to Zeenk’ intellectual property in any appropriate jurisdiction.
11.10 Entire Agreement. This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
Service Level Agreement
1. Uptime. Zeenk’ servers and any other Zeenk’ equipment necessary to operate the Platform shall have no less than ninety-nine percent (99%) Uptime on a monthly basis. “Uptime” means that an active and enabled user has reasonable access to the Platform. Notwithstanding the forgoing, if user is unable to access the Platform due to any of the following, it shall not constitute an Uptime failure:
(a) Acts of God, acts of any governmental body, war, terrorism, earthquake, fire, flood, labor dispute, acts of hackers and such other acts or omissions as are outside the reasonable control of Zeenk;
(b) Failure of access circuits to the hosting service backbone;
(c) User’s own internet service provider;
(d) Facebook or other Properties’ outages or downtime;
(e) Any systemic internet failures;
(f) Any failure in the user’s own hardware, software or network connection;
(g) User’s bandwidth restrictions;
(h) User’s acts or omissions;
(i) Routine scheduled maintenance (as described below); or
(j) DNS issues outside the control of Zeenk.
2. Scheduled Maintenance.Zeenk shall use commercially reasonable efforts to notify Customer of any routine maintenance at least 48 hours prior to taking the Platform offline for routine scheduled maintenance and shall use commercially reasonable efforts to perform such maintenance at off-peak hours. In no event will the Platform be offline for scheduled maintenance more than a total of 120 minutes per month.
3. Response Time. Zeenk shall use commercially reasonably efforts to respond to requests from Customer regarding errors in the Platform made between 9am and 6 pm EST within the following timeframes following confirmed receipt by Zeenk of an error support request from Customer, and shall use commercially reasonable efforts to provide a workaround and/or permanent fix with a level of effort commensurate with the Severity Level of the error:
|Severity Level||Criteria||Response Time|
|Severity 1 – Critical||Unplanned interruption rendering the Services unavailable; no work-around||1 Hour Acknowledgement, hourly updates until resolved|
|Severity 2 – High||Unplanned interruption rendering the Services unavailable; work-around available||1 Hour Acknowledgement, hourly updates until resolved|
|Severity 3 – Medium||Services are available but degraded or unavailable for a single User or small percentage of users affected||4 Hour Acknowledgement, updates every 24 hours.|
|Severity 4 – Low||Feature requests and Intermittent problems||24 Hour Acknowledgement. Updates as needed.|
Customer shall first attempt to confirm the source of the problem as an error with the Platform that is not attributable to software or services not provided by Zeenk. Customer agrees to make available all reasonably necessary technical information and personnel (including as they relate to any relevant third party technology/services) requested by Zeenk in connection with error resolution.
4. Escalation. For the purposes of this SLA, the following contact information should be used to establish communications between the parties for technical issues related to scheduled maintenance, availability and other issues covered by this SLA.
|Dedicated Account Manager||TBD|
|Electronic Ticketing Support Platform||Submit support request via electronic ticketing support utility|
5. Service Availability Credits. If during any full calendar month of the term of this Agreement, the Actual Uptime percentage is lower than 99%, Zeenk shall provide Customer with a service credit in accordance with the applicable service credit % set forth below. The service credit shall be applied against the subscription fee during the month in which the Uptime failure occurs, and will be deducted from Customer’s invoice.
|Availability||Credit Amount of Monthly Fee for Affected Seats|
|> 97.9% but < 99%||1%|
|> 96.9% but < 97.9%||2%|
2004/915/EC: Commission Decision of 27 December 2004
Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)
Data transfer agreement
Customer, hereinafter “data exporter”
Zeenk, Inc., located at 50 Milk Street, 10th Floor, Boston, MA 02109, USA, hereinafter “data importer”
each a “party”; together “the parties”.
For the purposes of the clauses:
(a) “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
(b) “the data exporter” shall mean the controller who transfers the personal data;
(c) “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
(d) “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
I. Obligations of the data exporter
The data exporter warrants and undertakes that:
(a) The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
(b) It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
(c) It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
(d) It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
(e) It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
II. Obligations of the data importer
The data importer warrants and undertakes that:
(a) It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
(b) It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
(c) It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
(d) It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
(e) It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I (e).
(f) At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
(g) Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
(h) It will process the personal data, at its option, in accordance with:
· (i) the data protection laws of the country in which the data exporter is established, or
· (ii) the relevant provisionsof any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data,or
· (iii) the data processing principles set forth in Annex A.
Data importer to indicate which option it selects: Option iii.
Initials of data importer: Zeenk, Inc., Signed by D.P.
(i) It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
· (i) the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
· (ii) the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
· (iii) data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
· (iv) with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer.
III. Liability and third party rights
(a) Each party shall be liable to the other parties for damages it causes byanybreach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
(b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I (b), I (d), I (e), II (a), II (c), II (d), II (e), II (h), II (i), III (a), V, VI (d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
IV. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II (h), which shall apply only if so selected by the data importer under that clause.
V. Resolution of disputes with data subjects or the authority
(a) In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
(b) The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
(c) Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
(a) In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
(b) In the event that:
· (i) the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
· (ii) compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
· (iii) the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
· (iv) a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
· (v) a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
(c) Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
(d) The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI (c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
FOR DATA IMPORTER FOR DATA EXPORTER
DATA PROCESSING PRINCIPLES
1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
3. Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
4. Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
5. Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
6. Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
7. Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
8. Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
· (a) (i) such decisions are made by the data importer in entering into or performing a contract with the data subject, and(ii) the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties;or (b) where otherwise provided by the law of the data exporter.
DESCRIPTION OF THE TRANSFER
The personal data transferred concern the following categories of data subjects:
The personal data transferred concern individuals who interact with digital media properties (like websites and/or mobile applications), which are owned and/or operated by data exporter.
Purposes of the transfer(s)
The transfer is made for the following purposes:
· Personal data will be transferred from the data exporter to the data importer for the data importer to provide advertising automation software
· These services will consist of providing a software-as-a-service online advertising automation platform (“Platform”) and performance analytics to the data exporter in relation to advertising content served or controlled by data importer, which advertise goods and/or services offered by the data exporter and which are viewed by individuals on third party digital media properties.
· Full details about the data importer’s products and services can be found at http://www.zeenk.com/.
· Personal data will be transferred from the data exporter to the data importer for data importer’s internal business purposes, including without limitation, to improve its Platform.
· Categories of dataThe personal data transferred concern the following categories of data:
The personal data transferred concern the following categories of data: geographic location; type of device used (e.g. Blackberry, Android, iPhone, Windows phone, iPad, Kindle Fire); IP address; device ID, device advertising ID; cookie data; pixel data; and online browsing behaviour.
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
The data exporter is a customer of Zeenk, Inc. The data exporter acts as a controller in transferring the data subjects’ personal data to the data importer.
The data importer is Zeenk, Inc. (a US-headquartered provider of advertising automation software).The data importer acts as a separate and independent controller in processing the data subjects’ personal data which it receives from the data exporter under these Clauses.
Third parties service providers that assist data importer in making the Platform available may be the recipients of personal data.
Personal data may be disclosed to third parties as may be required by law.
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data:
The data exporter does not intentionally collect or transfer any sensitive personal data in relation to these data subjects.
Data protection registration information of data exporter (where applicable)
Additional useful information
We will retain personal data for the period necessary to fulfill the purposes outlined above unless a longer retention period is required or permitted by law.
Contact points for data protection enquiries
50 Milk St., 10th Floor
Boston, MA 02109
 “Relevant provisions” means those provisions of any authorisation or decision except for the enforcement provisions of any authorisation or decision (which shall be governed by these clauses).
 However, the provisions of Annex A.5 concerning rights of access, rectification, deletion and objection must be applied when this option is chosen and take precedence over any comparable provisions of the Commission Decision selected.