MASTER SERVICES AGREEMENT
Effective as of July 1, 2022
This Zeotap Master Services Agreement, together with its Schedule(s) (the “MSA”) is made and entered into on the Effective Date between zeotap GmbH, a company incorporated under the laws of Germany and having its registered office at c/o WeWork, Stresemannstraße 123, 10963 Berlin, Germany (hereinafter referred to as “Zeotap”) and the party signing the Order Form which references this MSA (hereinafter referred to as the “Client”). Zeotap and Client shall hereinafter be referred to individually as “Party” and, collectively, as “Parties.”
The Parties agree as follows:
Capitalised terms not otherwise set out in the Agreement shall have the meaning set out in the attached Schedule 1 (Definitions).
2.1 During the Term, Zeotap will provide to Client the Services identified in the Order Form on a subscription basis, subject to any Usage Thresholds set forth in the Order Form and in accordance with the Documentation. Zeotap reserves the right to update and modify the Services at any time in its sole discretion, provided that Zeotap may not materially decrease the functionalities in the Service during the Term.
2.2 Zeotap hereby grants Client a limited, non-exclusive, non-sublicensable and non-transferable licence to access the System and use the Services in the Territory for the purposes as agreed by the Parties in the Agreement. Client may use the Services for the benefit of its Affiliates, and Affiliates may use the Services for their own benefit, but only within the Usage Thresholds as set out in the applicable Order Form and subject to compliance with all terms of this Agreement. Client guarantees that each Affiliate will fully perform its obligations hereunder, and Client is responsible for any breach of this Agreement by its Affiliates.
2.3 Only Users may access the System and use the Services for Client’s internal business purposes. Client shall ensure that the Users, employees and third parties it makes the Services available to as permitted herein are subject to confidentiality, security and privacy obligations substantially similar to the ones contained in this Agreement. Client is responsible and liable for (i) Client’s customers and Users’ access to the System and use of Services; and (ii) any use of the System and/or Services through Client and/or User account, whether authorised or unauthorised.
2.4 Client is responsible for selecting and configuring any Third-Party Platform integrated with the Services, for any other third-party products it chooses to use with the Services and for any transfer of Client Data it enables through the System. Notwithstanding anything to the contrary, Zeotap is not responsible for any Third-Party Platform or other third-party products used by Client with the Services, particularly how the providers use or protect Client Data. Client’s use of any Third-Party Platform or other products is subject to its separate agreement with the provider. The Parties acknowledge and agree that where a Third-Party Platform is utilised, the Parties shall use such platform in accordance with that Third Party Platform’s terms and conditions, policies and legal requirements.
3. Professional Services
3.1 Professional Services will be provided by Zeotap in accordance with the Order Form or a Statement of Work (“SOW”) containing the relevant terms and conditions, which will be governed by this Agreement. Unless otherwise identified in the Order Form or a Statement of Work, all Professional Services must be used within the relevant Term.
3.2 Zeotap shall deliver all Professional Services from any of Zeotap Group’s offices unless otherwise mutually agreed between the Parties. Client shall reimburse Zeotap for all reasonable, pre-approved (email sufficient) and appropriately documented travel and related expenses incurred by Zeotap in performing any support or Professional Services for Client.
3.3 Zeotap may, in its reasonable discretion, use subcontractors to perform any of its obligations hereunder. Zeotap will be responsible for the performance of Professional Services by its personnel (including employees and subcontractors) and their compliance with Zeotap’s obligations under this Agreement, except as otherwise specified herein.
4. Client Data
4.1 Client hereby grants Zeotap and its Affiliates a limited, non-exclusive, non-sublicensable and non-transferable licence to Client Data solely for the provision of Services subject to the conditions hereunder including the rights to: (i) receive, store, and transform Client Data; (ii) reproduce and make derivative works of Client Data; and (iii) transmit and distribute Client Data (or derivative works).
4.2 The Parties agree that where any Client Data onboarded to the System include Personal Data, Zeotap shall process such Client Data as a processor on Client’s behalf. The data processing activities shall occur in compliance with all Applicable Laws and in accordance with the Data Processing Addendum.
5. Fees and Payment
5.1 Client shall pay to Zeotap the Fees set forth in the applicable Order Form in accordance with this section 5.
5.2 Unless otherwise specified in the Order Form, the Parties agree that where the reported usage exceeds the thresholds specified in the Order Form, overage charges shall be due and payable by Client (the “Overage Fees”). Zeotap will issue an invoice for Overage Fees at the end of the relevant month based on the monthly reporting provided under this Agreement. Unless otherwise specified in the Order Form, the Overage Fees shall be payable within 15 (fifteen) days from the invoice date.
5.3 Upon written request to Zeotap (email sufficient) or through a self-service functionality in the System, as available, Client may obtain reports on the Services usage.
5.4 All Fees due to Zeotap are exclusive of any applicable tax (“Tax”). Client shall pay Zeotap any Tax that is due or provide Zeotap with satisfactory evidence of Client’s exemption from the Tax in advance of invoicing.
5.5 Client shall provide Zeotap with accurate and adequate documentation sufficient to permit Zeotap to determine if any Tax is due.
5.6 In the event the tax authorities in one country claim that Tax is owed in accordance with their domestic tax law and a potentially applicable double taxation treaty that withholding taxes must be withheld from the payments to be made by the Client to Zeotap under this Agreement, such withholding taxes shall be borne by the Client.
5.7 Client agrees to promptly provide Zeotap with accurate factual information and documentation of Client’s payment of any such withholding taxes.
5.8 As far as possible and appropriate, the Parties will lodge an appeal against the assessment of the withholding tax.
5.9 The Parties shall support each other in every possible respect, especially with regard to possible applications for refunds of withholding taxes paid.
5.10 If Zeotap receives any refund of withholding taxes which have been borne by the Client, Zeotap will remit the received payments to the Client.
5.11 If Client fails to pay any amount due under this Agreement to zeotap, then, without prejudice to any of Zeotap’s other rights and remedies: (i) Zeotap may cease to provide and/or disable Client’s and Users’ access to all or part of the Products and/or System and Zeotap shall be under no obligation to provide any or all of the Products while the invoice(s) concerned remain unpaid; and (ii) Zeotap shall be entitled to recover all reasonable legal fees and other reasonable costs associated with the collection of such amounts, and (iii) Zeotap will charge a delayed payment charge at the rate of 1.5% per month compounded monthly (or, if less, the maximum amount allowed by Applicable Laws).
5.12 Zeotap may adjust the Fees for any additional Renewal Term, by giving written notice to Client (email sufficient) at least 30 (thirty) days before the start of each Renewal Term, to: (i) remove any discounts granted during the Initial Term or then current Renewal Term, as applicable; and (ii) increase the Fees charged to the Client.
6. Intellectual Property Rights
Except to the extent set forth herein, neither Party grants the other any express or implied licence to or assigns its Intellectual Property Rights, including without limitation, all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System, including any modifications or improvements to these items made by Zeotap. Each Party and/or its licensors shall remain the sole owner of its respective Intellectual Property Rights. For the avoidance of any doubt, Zeotap may use know-how acquired, principles learned or developed, or experience gained during the performance of its obligations under this Agreement for its own purposes, including the use of aggregated and anonymised Client Data to improve the Services and develop and provide additional products and services.
7. Representations and Warranties
7.1 Zeotap will (i) provide the Services materially in accordance with the Documentation and the SLA; (ii) provide the Professional Services in a professional and workmanlike manner in accordance with generally accepted industry standards; (iii) maintain during the Term all rights, authorizations and licenses that are required to provide the Services; (iv) make the Services available in accordance with Zeotap’s obligations under Applicable Laws.
7.2 Disclaimer. Except as expressly set forth in the Agreement and to the maximum extent permitted by Applicable Laws, the Services and the System are provided “as is” and as available, without representations or warranties of any kind, express or implied, including without limitation implied warranties of merchantability or fitness for a particular purpose, non-infringement, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade. Without limiting the generality of the foregoing: (i) Zeotap does not warrant that the Services and/or System will perform without interruption or error; (ii) Zeotap does not warrant that it will review Client Data for accuracy or that it will maintain Client Data without loss, where such loss is caused by an event beyond Zeotap reasonable control, and (iii) Zeotap does not make any warranties with respect to non-Zeotap products and shall not be liable for delays, failures or other problems inherent in the use of the Internet and electronic communications or systems outside Zeotap’s control.
8.1 To the maximum extent permitted by Applicable Laws, subject to clause 8.3, neither Party shall be liable to the other for any: (i) loss of revenue; (ii) loss of actual or anticipated profits; (iii) loss of the use of money; (iv) loss of anticipated savings; (v) loss of business; (vi) loss of opportunity; (vii) loss of goodwill or reputation; (viii) loss of contracts; (ix) loss of, damage to, or corruption to software or data; (x) the cost of selecting and procuring alternative or replacement software and services; or (xi) any indirect, special, or consequential loss or damage of any kind, even if informed of their possibility in advance.
8.2 Subject to clause 8.3 below, either Party’s aggregate liability arising from or relating to or in connection with the performance or contemplated performance of the Agreement, or the use of or inability to use, supply, failure to supply or delay in supplying, the Services, including any liability for the acts or omissions of either Party’s employees, agents subcontractors, and Affiliates, however caused and whether in contract, tort (including negligence), misrepresentation, restitution, for breach of a statutory duty or otherwise shall be limited to the amount of Fees due to Zeotap by Client under the Order Form for the Services giving rise to liability in the 12 (twelve) months preceding the moment the relevant claim arose. Notwithstanding anything to the contrary, each Party’s aggregate liability to the other Party for data protection claims, whether in contract, tort, warranty or otherwise, shall be limited to 2 (two) times the amount of Fees due to Zeotap by Client under the Order Form for the Services giving rise to liability in the 12 (twelve) months preceding the moment the relevant claim arose.
8.3 Nothing in this Agreement excludes or limits either Party’s liability for: (i) fraud or fraudulent misrepresentation, (ii) death or personal injury caused by its negligence, (iii) breach of its obligations in section 10 (Confidentiality); (iv) indemnity obligations; (v) payment of sums properly due and owing to the other in the course of normal performance of the Agreement; or (vi) any other liability that cannot be excluded or limited under Applicable Laws.
9.1 Zeotap shall defend Client and its Affiliates, directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Client Parties”) against any third-party claim, suit, action, demand, proceeding or judgment (each, a “Claim”) to the extent such Claim alleges that the Services and/or System infringe any Intellectual Property Right and shall indemnify Client and Client Parties for any liability, damage, loss, administrative fine or expense (including without limitation court costs, reasonable legal fees and expenses of litigation) finally awarded (collectively, “Losses”) against Client or Client Parties in judgment or settlement of such Claim.
9.2 Client shall indemnify, defend and hold harmless Zeotap and its Affiliates, directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Zeotap Parties”) against any Losses incurred by or imposed upon Zeotap or any of the Zeotap Parties in connection with any Claim relating to (i) Client’s improper use of the Services and/or System as contemplated by this Agreement, (ii) Zeotap’s use of Client Data for the provision of Services as contemplated by this Agreement.
9.3 The above indemnification obligations are conditioned upon the Party seeking indemnification hereunder providing the indemnifying Party with (i) prompt written notice of the Claim for which it is seeking indemnification; (ii) sole authority to defend or settle the Claim; and (iii) reasonable cooperation and assistance in connection with the defence and settlement of the Claim at the indemnifying Party’s expense. Any settlements shall be subject to the indemnified Party’s prior consent, not to be unreasonably withheld.
9.4 In the defence or settlement of any Claim, Zeotap may procure the right for Client to continue using the Services and/or System, replace or modify the Services and/or System so that they become non-infringing or, if such remedies are not reasonably available, terminate the right to use the affected Services and/or System and refund any prepaid Fees covering that portion of the Term for such Services remaining after the effective date of termination.
9.5 In no event shall Zeotap, and its Affiliates, its employees, agents and subcontractors be liable to Client to the extent that the alleged Intellectual Property Right infringement is based on: (i) a modification of the Services and/or System by anyone other than Zeotap; or (ii) Client’s and/or Client’s Affiliates’ use of the Services and/or System (a) in a manner contrary to the instructions given to Client by Zeotap or (b) not in accordance with the provisions of this Agreement; or (iii) Client’s and/or Client’s Affiliates’ use of the Services and/or System after notice of the alleged or actual infringement from Zeotap or any appropriate authority.
10.1 The Party receiving Confidential Information (“Receiving Party”) shall not share Confidential Information with third parties without the written consent of the Party disclosing Confidential Information (the “Disclosing Party”), except to its Affiliates, employees, investors, contractors and advisors, on a need to know basis and which shall be bound by the same confidentiality obligations as those contained herein. The Receiving Party shall be liable for all actions by such third parties with respect to the Confidential Information. The Receiving Party shall apply the same degree of care to protect Confidential Information as it applies to its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations and exercising its rights under this Agreement, or in connection with a proposed financing or acquisition.
10.2 Confidential Information does not include information that: (i) is or becomes part of the public domain through no fault of the Receiving Party; (ii) was already in possession of the Receiving Party, without restriction; (iii) is independently developed by the Receiving Party without violation of this clause; or (iv) is received from a third party under no duty of confidentiality toward the other Party. The Receiving Party may disclose Confidential Information if it is required to do so by Applicable Laws, as long as the Receiving Party provides the other Party with prompt notice (if allowed by Applicable Laws) and complies with any protective order imposed on such disclosure.
10.3 Client acknowledges and agrees that Zeotap has no obligations to treat as confidential any Feedback (as defined below) that Client, Client’s customers, or other Users provide to Zeotap, and nothing in the Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Zeotap’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client or the Client’s customers or other User in question. Feedback will not constitute Client Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Zeotap’s products or services.)
11. Term and Termination
11.1 This MSA continues until the expiration of all Order Forms unless terminated earlier in accordance with this MSA. Termination of one Order Form will not have any effect on the validity of any other Order Forms.
11.2 This Agreement shall commence on the Effective Date and shall continue for the Initial Term as set forth in the Order Form. Thereafter, the Agreement shall automatically renew for successive 12 (twelve) month periods (or such other period as specified in the applicable Order Form) (each a “Renewal Term”) unless terminated by either Party on 30 (thirty) days’ written notice prior to the end of the respective Initial Term or relevant Renewal Term, or otherwise terminates in accordance with the provisions of the Agreement.
11.3 Either Party may terminate the Agreement (i) for cause upon prior written notice if the other Party materially breaches any of its obligations hereunder and such breach remains unrectified for a period of 30 (thirty) days after the date the non-breaching Party provides written notice of such material breach; or (ii) if the other Party becomes insolvent or bankrupt, makes an assignment for the benefit of creditors, has a trustee or receiver appointed for it, becomes the subject of any voluntary or involuntary insolvency or dissolution, bankruptcy or reorganisation proceeding, which, in the case of any involuntary proceeding, is not dismissed within 60 (sixty) days after it is commenced, or discontinues its business.
11.4 Zeotap may suspend the provision of Services and/or access to the System, at any time on reasonable notice to Client: (i) where required to do so by a supervisory or law enforcement authority; (ii) if in the reasonable opinion of Zeotap’s counsel the supply of Services may violate Applicable Laws, as well as Zeotap’s contractual obligations to third parties; (iii) if Zeotap reasonably believes that the supply of Services may cause any harm or give rise to liability, including but not limited to a risk of a data leakage; or (iv) if Client and/or Zeotap access to the Third Party Platform has been suspended. If a suspension continues for 30 (thirty) days, Client shall have the right to terminate this Agreement, in which case Zeotap will refund Client any prepaid Fees for the remaining portion of the Term.
11.5 Upon expiration or termination of this Agreement or an Order Form, Client’s access to the System and the Services will cease. At the request of the Disclosing Party, the Receiving Party shall within 10 (ten) days return the Disclosing Party’s Confidential Information or destroy all such material and may, upon request, certify the destruction to the Disclosing Party, except where the Receiving Party is required to retain a copy of such under mandatory Applicable Laws. Client Data will be deleted or returned to Client within 30 (thirty) days of a written request from Client and, in any case, deleted within ninety (90) days after the termination or expiration of the Agreement, unless Applicable Laws require storage of the Client Data.
11.6 The following provisions will survive termination or expiration of this Agreement: (i) any obligation of Client to pay fees incurred before termination; (ii) clauses 6 (Intellectual Property Rights), 7 (Representations and Warranties), 8 (Liability), 9 (Indemnities), 10 (Confidentiality), and (iii) any other provision of this Agreement that must survive to fulfil its essential purpose.
12.1 Neither Party shall be considered in breach of this Agreement to the extent that performance of their respective obligations is prevented by an event of Force Majeure. The affected Party shall as soon as possible give notice to the other Party of an event of Force Majeure upon it being foreseen by, or becoming known to the affected Party. The Parties shall use their reasonable endeavours to: (i) overcome the effects of the event of Force Majeure; (ii) mitigate the effect of any delay occasioned by any event of Force Majeure; and (iii) ensure resumption of normal performance of this Agreement as soon as reasonably practicable and shall perform their obligations to the maximum extent practicable.
12.2 This Agreement supersedes all other commitments, negotiations and understandings. Except as otherwise provided in this Agreement, this Agreement cannot be amended except in writing and signed by both Parties. This Agreement cannot be assigned without written consent of the non-assigning Party, except that either Party may assign this Agreement (i) to an acquirer of substantially all of that Party’s assets, stock or business by sale, merger or otherwise or (ii) to an Affiliate. Zeotap may assign its rights and obligations under the Agreement when the Applicable Laws provides for an automatic succession, to its Affiliates or in connection with the change of control transactions, including mergers, sales of all or substantially all assets.
12.3 If any provision of this Agreement is unenforceable, that provision shall be re-interpreted to be as close to the Parties’ intent as legally possible and the validity of the remaining provisions will not be affected.
12.4 During the Term: (i) Client agrees to participate in case studies and other similar marketing efforts reasonably requested by Zeotap, subject to each Party’s prior review and approval as to content; (ii) Zeotap may disclose that Client is a client of Zeotap to third parties; and (iii) Zeotap may include on and in its website, case studies, marketing materials, and conference presentations and other speaking opportunities, Client’s testimonials and other feedback regarding the Products, name, website URL, use case, and logo and other marks. Upon request from Client, Zeotap will promptly stop making the disclosure and use described in the foregoing sentence except to the extent already included in any then existing materials.
12.5 All notices must be in English, in writing, addressed (i) in the case of Zeotap to [email protected], and (ii) in the case of Client to the postal address or email address detailed in the Order Form, or such other address as either Party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable). Zeotap may also send operational notices to Client by email or through the System.
12.6 The Agreement shall be interpreted, construed and governed in accordance with the Governing Laws. The application of the United Nations Convention on Contracts for the International Sale of Goods are excluded. The Parties shall attempt in good faith to resolve any dispute arising out of or under this Agreement in an amicable manner. Any such dispute not resolved by the operational personnel involved shall be referred by either Party to a Dispute Resolution Committee made up of at least three senior officers of each Party within 15 (fifteen) Business Days of being notified of such a dispute. In the event that the Dispute Resolution Committee is unable to resolve any such dispute within 30 (thirty) days, each Party may take whatever steps are necessary to protect its interests. All disputes arising out of or in connection with the Agreement and not resolved amicably shall be finally settled by the Governing Courts.
12.7 A Party’s failure or delay to exercise any right will not operate as a waiver, nor will any single or partial exercise of any such right preclude any other exercise or the exercise of any other right, power or remedy.
Acceptable Use Policy means the Zeotap Acceptable Use Policy describing the acceptable usage of Zeotap’s System and Services, which current version is available at https://zeotap.com/legal-hub/aup/.
Affiliate means with respect to either Party, that Party, its subsidiaries, holding/parent companies, as well as subsidiaries of its holding/parent companies. For the avoidance of doubt Zeotap’s subsidiaries include Zeotap India Private Limited and Zeotap UK Limited.
Agreement means this MSA (including any schedules, addenda and ancillary agreements and the Acceptable Use Policy), together with a completed and signed Order Form.
Applicable Laws means all the legislation and enactment or orders that are applicable to any of the Parties. In particular, any applicable law relating to fraud, bribery and corruption (such as the UK Bribery Act 2010, Criminal Finances Act 2017 and the United States Foreign Corrupt Practices Act 1977), as well as any applicable law relating to the processing, privacy and use of personal data, including, without limitation: (i) the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the UK Data Protection Act 2018 (“UK GDPR”), and any corresponding national laws; (ii) any judicial or administrative interpretation of any of the above, including any binding guidance, approved codes of conduct or approved certification mechanisms; and (iii) any other applicable laws, rules, and regulations, including, to the extent applicable, industry self-regulations.
Business Day means a day other than a Saturday, Sunday or public holiday in Germany when banks in Berlin are open for business.
Client Data means the data set onboarded by Client to the System for the usage of its functionalities, and the Services. The data set may include the following data attributes: online identifiers (such as advertising ID or cookie ID), offline identifiers (such as email address or phone number from a Client’s CRM system or another source), consent preferences, browsing data, interest data, or sociodemographic data.
Confidential Information means any of the Parties’ or Parties’ Affiliates’ proprietary information, technical data, trade secrets or know-how, including, but not limited to research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, costs, pricing, pricing and methodology or other business information, which is marked as confidential or is to be seen as confidential because of its nature; Confidential Information includes the terms of this Agreement.
Data Processing Addendum means the agreement between the Parties for the processing of personal data, in accordance with Applicable Laws, available at https://zeotap.com/legal-hub/terms-dpa/, which is incorporated herein by reference.
Data Segments means the data set created by Client through functionalities in the System comprised of Client Data and/or Zeotap Data (as applicable), but without gaining access to the underlying Zeotap Data.
Documentation means the applicable usage guides and technical policies made available to Client during the Term, and designed to facilitate the use of Services by Client.
Effective Date means the date which shall be sooner to occur of (i) the Start Date stated on the Order Form and (ii) the date the Order Form is signed by the Client.
Fees means the fees payable to Zeotap for the Services purchased by Client, which must be paid in accordance with the Order Form and section 5 of the MSA and any other fees due pursuant to this Agreement including but not limited to, Overage Fees.
Force Majeure means any event beyond the reasonable control of either Party including, among other things, unpredictable adverse weather conditions, war, acts of God, acts of terrorism, floods, earthquakes or civil disturbance (but excluding labour disputes, strikes, industrial action or lockouts by the Party seeking to rely on Force Majeure).
Governing Laws and Governing Courts mean, for each Client, the laws and courts set forth in the following table:
|Client’s registered office||Governing Laws||Governing Courts|
|Italy||The laws of Italy||The courts in Milan|
|Spain||The laws of Spain||The courts in Madrid|
|Germany||The laws of Germany||The courts in Berlin|
|France||The laws of France||The courts in Paris|
|United Kingdom||The laws of England and Wales||The courts of England|
|All other jurisdictions||The laws of England and Wales||The courts of England|
Initial Term means the period commencing on the respective Effective Date and ending upon the expiry of the months specified in the respective Order Form(s).
Intellectual Property Rights means any rights in or in relation to any patent, copyright, database rights in relation to software, utility model, trademark (whether registered or not), brand name, service mark, trade secrets and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and existing anywhere in the world.
Overage Fees means those fees as defined in clause 5.2 of this MSA.
Professional Services means Zeotap’s implementation, configuration, training and consulting services as may be specified in the Order Form or Statement of Work.
Renewal Term has the meaning given in clause 11.2 of this MSA.
Services means the services purchased by Client, as identified in the Order Form, and provided by Zeotap through the System, or otherwise agreed by the Parties, and pursuant to the Agreement.
SLA means the Zeotap standard service level agreement for the Services and/or System which is available at: https://zeotap.com/wp-content/uploads/210824_Service-level-agreement.pdf (as Zeotap may update, modify, or change from time to time), and which is incorporated herein by reference.
System means the Zeotap Unity Dashboard that may be accessed by Client to use the Services.
Term means the period described in clause 11.2 of this MSA.
Territory means the geographical area(s) as provided in the Order Form.
Third Party Platform means a digital platform operated by a third party, which is available to Client in the System and/or will be agreed by the Parties to be the receiver of Client Data and, if applicable, Data Segments, for the purposes of this Agreement.
Usage Thresholds means the maximum number of usage units (as specified on the applicable Order Form) that can be used within the applicable Services without incurring in Overage Fees.
User means any authorised individual who uses the System on Client’s behalf and/or through Client’s account or passwords.
Zeotap Data means the data attributes including online identifiers (such as advertising ID or cookie ID (or, if applicable, ID+)), sociodemographic data, app usage, purchase intent, provided by Zeotap’s Data Partners to Zeotap and managed by Zeotap.
Zeotap’s Data Partner means data providers from which Zeotap sources the Zeotap Data.
Zeotap Group means Zeotap and its Affiliates.
ZEOTAP FUEL SPECIFIC TERMS
- By accepting the terms of this Agreement, the Parties agree that where any Zeotap Data is processed by Client, as an independent Data Controller under this Agreement, such processing shall occur only in compliance with all Applicable Laws and the specific provisions of this Agreement.
- Zeotap grants Client a limited, non-exclusive, non-sublicensable, non-transferable and revocable licence and provides access to Zeotap Data to be used by Client only for the Territory according to the Order Form. Client is entitled to run managed advertising campaigns using Zeotap Data as well as provide analytics, all in connection with advertising campaigns utilising Zeotap Data.
- Where Zeotap Data is shared with Client, Client shall not use Zeotap Data or any other content made available in such a way as to: (i) transfer, share, licence or make available Zeotap Data to any third party, other than permitted in the Agreement; (ii) use Zeotap Data in a way that such could be recognized as directly identifiable Personal Data or special categories of Personal Data; (iii) facilitate the merging of directly identifiable Personal Data or sensitive Personal Data with Zeotap Data; (iv) attempt to store, decompile or re-identify Zeotap Data; (v) use Zeotap Data for any purpose other than provided in the Agreement; (vi) reproduce, modify, enhance or create derivative works of any Zeotap Data other than permitted hereunder.
- Where Zeotap Data is shared with Client, Client may not disclose the underlying online identifiers, or any other data attribute supplied by Zeotap to a third party other than the agreed platforms subject to the restrictions under the Agreement.
- Client hereby acknowledges and agrees as follows:
- Client shall use the Zeotap Data only in accordance with the provisions of the Agreement and Applicable Laws;
- Third-Party Platforms: if Client requests Zeotap to transfer Zeotap Data to a Third Party Platform, Client is solely responsible and liable for this transfer and in any event, Client shall not act or omit to act in a way which places Zeotap in breach of any Applicable Laws. Client represents and warrants that it entered or will enter into agreements to authorise any data processing by such Third Party Platforms and to (i) appoint such Third Party Platforms as data processors and, (ii) if applicable, enter into data processing agreements, EU Standard Contractual Clauses, including supplementary measures as required, and/or another mechanism to ensure compliance of any international transfers;
- Confidentiality: Client shall ensure that all personnel who uses Zeotap Data are obliged to keep it confidential;
- Data Subject Requests: Client shall assist Zeotap in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Applicable Laws with respect to, in particular, security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- Retention Policy: Client shall ensure that the Zeotap Data is not retained by the Third Party Platforms or Client beyond the time-to-live period allowed by Zeotap, which is 30 (thirty) days from the provision of such data. Zeotap may request Client’s written certification signed by an authorized representative confirming the deletion of the Zeotap Data.
- Storage: Client shall ensure that Zeotap Data is physically stored solely on servers owned or controlled by Client and located within the European Economic Area (“EEA”) and shall inform Zeotap in case of any transfer of Personal Data outside of the EEA and shall ensure to Zeotap in such cases that: (i) appropriate safeguards are in place; (ii) the Data Subject whose Personal Data is transferred will have enforceable rights and effective legal remedies; (iii) an adequate level of protection to any Personal Data that is transferred will be provided.
- Security: Client shall implement and maintain appropriate technical and operational measures with regard to Zeotap Data in Client’s possession and control designed to (i) ensure the security, confidentiality, and integrity of the Zeotap Data, (ii) protect against any anticipated threats or hazards to the security or integrity of the Zeotap Data, and (iii) protect against unauthorised access to, or unauthorised use or disclosure of, the Zeotap Data. In the event of an actual or suspected breach of such security measures, Client shall notify Zeotap within 48 hours.
- Deletion Policy: in the event of termination or expiration of the Agreement or if requested by Zeotap to comply with the Applicable Laws and/or with a request of Zeotap’s Data Partners, Client shall immediately cease to use the Zeotap Data, and delete, destroy, or return all the Zeotap Data under its control within 10 (ten) days. Campaign reports do not have to be deleted.
- Client will not, and will not allow its Users to use the Zeotap Data to advertise (i) prohibited content (content that client or its customers should not be advertising), including, but not limited to, counterfeit products, dangerous products or services, enabling dishonest behaviour, inappropriate content (hatred, violence, intolerance, shocking or exploitative content), telecoms carrier products or services (to avoid conflict of interest), and (ii) restricted content (content that client or its customers may be advertising only in accordance with local regulations), which includes adult content, alcohol, gambling and games, healthcare and medicines (including pharmacies), political content, financial services.
- Zeotap may suspend the provision of Services, at any time on reasonable notice to Client, if Zeotap’s Data Partner instructs Zeotap to stop using the Zeotap Data required for the provision of Services. Zeotap shall refund the Client pro rata for any prepaid Fees. If the suspension continues for 30 (thirty) days, the Client shall have the right to terminate this Agreement, in which case Zeotap will refund Client any prepaid Fees for the remaining portion of the Term.
- During the Term and for a period of 12 (twelve) months thereafter, Client may not approach or engage with Zeotap’s Data Partners that have been disclosed to Client.
- Client may push Zeotap Data Segments to Third Party Platforms through the System functionalities, in order to run advertising campaigns. Client acknowledges and agrees that pushing Zeotap Data Segments to Third Party Platforms may be subject to costs charged by each relevant Third Party Platform, in accordance with that Third Party Platform’s terms and conditions and policies. For clarity, any costs charged by a Third Party Platform shall not be included in the Fee and shall be paid by Client directly to the Third Party Platform.
- Where the Usage Thresholds are based on a number of targeted impressions, Client shall provide Zeotap a data usage report in the following format:
- Content: the report shall include:
– Targeted impressions delivered per segment / per brand / per campaign;
– If possible, clicks and/or other performance metrics coming from targeted impressions.
- Frequency: Client shall provide a weekly and/or monthly report on the data usage. Monthly report shall be provided no later than five (5) Business Days after the end of every month to [email protected].
- Format: Client shall send reports in Excel / CSV format. In any case, Client shall provide Zeotap access to real-time data usage information and related metrics to the extent regularly generated by Client or reported by Client to other third-party data contributors, whether through access to a dashboard, by provision of reports or other reasonable means therefor.
- Content: the report shall include:
- Zeotap appoints a Data Protection Officer. Current data protection officer is Prof. Dr. Christoph Bauer, member of the ePrivacy GmbH management team, who can be contacted at [email protected].
- In the event that Zeotap suspects any breach of the requirements of the Agreement, Zeotap may suspend definitively Client and/or its User’s access to the System and/or relevant Services without advanced notice, in addition to such other remedies as Zeotap may have.