Master Services Agreement
Effective as of November 1, 2021
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, Warschauer Platz 11-13, 10245 Berlin, Germany (hereinafter referred to as “Zeotap”) and the party signing the Order Form which references these Terms (hereinafter referred to as the “Client”). Zeotap and Client shall hereinafter be referred to individually as “Party” and, collectively, as “Parties.” This MSA along with the Order Form constitute the agreement between the parties (collectively referred to as the “Agreement“).
The Parties agree as follows:
1.1 Capitalised terms not otherwise set out in these Terms shall have the meaning set out in the attached Schedule 1 (Definitions).
2.1 Client’s use of any Zeotap Product is subject to (i) this MSA and (ii) the additional terms outlined in Schedule 2 to this MSA that correspond with the Zeotap Product being used (“Product Specific Terms”).
3.Fees and Payment
3.1Client shall pay to zeotap the Fees set forth in the applicable Order Form in accordance with this clause 3.
3.2 The Parties shall provide the reports on the Products usage, if and as specified in the Product Specific Terms. 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”).
3.3 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.
3.4 Client shall provide Zeotap with accurate and adequate documentation sufficient to permit Zeotap to determine if any Tax is due.
3.5 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.
3.6 Client agrees to promptly provide Zeotap with accurate factual information and documentation of Client’s payment of any such withholding taxes.
3.7 As far as possible and appropriate, the Parties will lodge an appeal against the assessment of the withholding tax.
3.8 The Parties shall support each other in every possible respect, especially with regard to possible applications for refunds of withholding taxes paid.
3.9 If Zeotap receives any refund of withholding taxes which have been borne by the Client, Zeotap will remit the received payments to the Client.
3.10 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).
3.11 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.
4.Licenses and Intellectual Property Rights
4.1 Zeotap hereby grants Client a limited, non-exclusive, non-sublicensable and non-transferable license to use the System in the Territory for the purposes as agreed by the Parties in this Agreement.
4.2 Except to the extent set forth herein, neither Party grants the other any express or implied license 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. 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 obligation under this Agreement for its own purposes.
5.Representations and Warranties
5.1 Except as expressly set forth in the Agreement, neither Party makes any warranty, representation, condition or other term which might but for this clause have effect between Zeotap and Client or would otherwise be implied into this Agreement or otherwise in connection with the Agreement or any collateral contract, whether express, implied, statutory or otherwise. Without limitation, Zeotap does not warrant that the Products or System or any deliverables in connection therewith will satisfy Client’s requirements or are without defect or error or that the operation of any software provided hereunder will be uninterrupted or error free.
6.1 Client assumes sole responsibility (and Zeotap shall have no liability) for: (i) results obtained from the use of the Products by Client and/or Users and for conclusions drawn from such use; (ii) any damage caused by errors or omissions in any information, instructions or scripts provided to Zeotap by Client in connection with the Products; or (iii) any content published on a Client site by, or with the approval of, Client or any actions taken by Zeotap at Client’s direction.
6.2 To the maximum extent permitted by Applicable Laws, subject to clause 6.4, 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.
6.3 Subject to clause 6.4 below, Zeotap’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 Product, including any liability for the acts or omissions of Zeotap’s employees, agents and sub-contractors, 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 greater of: (i) the amount due to Zeotap from Client for the 6 (six) months preceding the moment the relevant claim arose, or (ii) EUR 50,000 (fifty thousand Euro).
6.4 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, or (iii) any other liability that cannot be excluded or limited under Applicable Laws.
6.5 Nothing in this Agreement excludes or limits Client’s liability for (i) breach of clause 8 (Confidentiality) below, (ii) indemnity obligations, (iii) payment of sums properly due and owing to the other in the course of normal performance of the Agreement or (iv) breach of privacy and security obligations set forth in the Product Specific Terms.
7.1 Without prejudice to this clause 7, 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 Claim that Zeotap’s use of Zeotap’s Product or System infringes any Intellectual Property Right or right of confidentiality, and shall indemnify Client and Client Parties for any amounts awarded against Client or Client Parties in judgment or settlement of such Claim.
7.2 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.
7.3 In the defence or settlement of any Claim, Zeotap may procure the right for Client to continue using the Products, replace or modify the Products so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 (two) Business Days’ notice to Client without any additional liability or obligation to pay liquidated damages or other additional costs to Client in which case the amount of Fees owed by Client to Zeotap are reduced accordingly.
7.4 In no event shall Zeotap, its employees, agents and subcontractors be liable to Client to the extent that the alleged infringement is based on: (i) a modification of the Products by anyone other than Zeotap; or (ii) Client’s and/or Client’s Affiliates’ use of the Products (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 Products after notice of the alleged or actual infringement from Zeotap or any appropriate authority.
7.5 The foregoing provides for Client’s sole and exclusive rights and remedies, and Zeotap‘s entire obligations and liability, for infringement of any Intellectual Property Right or right of confidentiality.
8.1 The Party receiving Confidential Information (“Receiving Party”) shall not share Confidential Information with third parties except to its Affiliates, employees, investors, contractors and advisors, on a need to know basis and 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 under this Agreement.
8.2 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.
8.3 Upon termination or expiration of the Agreement and in any case at the request of the Party disclosing Confidential Information (the “Disclosing Party”), the Receiving Party shall within 10 (ten) days return the other 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 .
9.Term and Termination
9.1 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.
9.2 This Agreement shall commence on the Effective Date and shall continue for the Initial Term. 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.
9.3 Either Party may terminate the Agreement 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.
9.4 Either Party may terminate the Agreement 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 reorganization proceeding, which, in the case of any involuntary proceeding, is not dismissed within 60 (sixty) days after it is commenced, or discontinues its business.
9.5 The following provisions will survive termination or expiration of this Agreement: (i) any obligation of Client to pay fees incurred before termination; (ii) clauses 4 (Licenses and Intellectual Property Rights), 5 (Representations and Warranties), 6 (Liability), 7 (Indemnities), 8 (Confidentiality), and (iii) any other provision of this Agreement that must survive to fulfil its essential purpose.
10.1 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.
10.2 This Agreement supersedes all other commitments, negotiations and understandings. 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 a corporate 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 assets.
10.3 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.
10.4 Both Parties shall have and maintain an insurance policy, with a reputable insurer, to adequately settle any potential claims that may arise under this Agreement. Upon request either Party shall provide a valid certificate of insurance evidencing the existence of the required insurance coverage to the other Party.
10.5 During the Term: (i) Client agrees to participate in case studies and other similar marketing efforts reasonably requested by Zeotap; (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.
10.6 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).
10.7 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.
10.8 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.
Access Details means a specific G Suite ID, the project ID, bucket and path details associated to Client, through which the System can be accessed.
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 North America, Inc., Zeotap India Private Limited, Mozeo Ad Tech Private Limited and Zeotap UK Limited.
Agreement means this MSA (including Documentation and any schedules, addenda and ancillary agreements and Client Use of Products and System 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”) 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 Use of Products and System Policy means the then current Zeotap Client Use of Products and System Policy located at: https://zeotap.com/legal-hub/terms-cups/ (as Zeotap may update, modify, or change from time to time), which is incorporated herein by reference.
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.
Documentation means the applicable Product usage guides and policies, as updated from time to time and accessible via https://zeotap.com/wp-content/uploads/2021/08/Zeotap-2021-Product-description-one-pagers.pdf (as Zeotap may update, modify, or change from time to time), which is incorporated herein by reference.
Effective Date means the date which shall be sooner to occur of (i) the Services Commencement 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 Products purchased by Client, which must be paid in accordance with the Order Form and clause 3 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 3.2 of this MSA.
Products means the products (including any product add-ons) provided by Zeotap to Client under the Order Form which are more fully described in the Documentation.
Renewal Term has the meaning given in clause 9.2 of this MSA.
SLA means the Zeotap standard service level agreement for the Products and/or System which is available at: https://zeotap.com/wp-content/uploads/2021/08/210824_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 Products.
Term means the period described in clause 9.2 of this MSA.
Territory means the geographical area(s) as provided in the Order Form.
User means any individual who uses the System on Client’s behalf and/or through Client’s account or passwords.
Zeotap Group means Zeotap and its Affiliates.
PRODUCT SPECIFIC TERMS
|Customer Data Platform||CDP Terms|
|Identity Resolution||IDR Terms|