BY ACCEPTING THIS PLATFORM AGREEMENT, EITHER BY CLICKING A BOX ONLINE INDICATING YOUR ACCEPTANCE, USING A ZETA PLATFORM OR BY EXECUTING A MASTER SERVICES AGREEMENT, STATEMENT OF WORK OR ORDER THAT REFERENCES THIS PLATFORM AGREEMENT, OR BY USING THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS PLATFORM AGREEMENT UNLESS YOUR COMPANY HAS SEPARATELY EXECUTED A MASTER SERVICES AGREEMENT, STATEMENT OF WORK OR ORDER WITH ZETA THAT SPECIFICALLY RELATES TO THE PLATFORM AGREEMENT IN WHICH CASE THIS AGREEMENT DOES NOT APPLY TO YOU. IF YOU ARE ACCEPTING THIS PLATFORM AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS PLATFORM AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES; PROVIDED, THAT IF YOUR COMPANY HAS SEPARATELY EXECUTED A MASTER SERVICES AGREEMENT, STATEMENT OF WORK OR ORDER WITH ZETA AND YOU ARE AUTHORIZED BY SUCH COMPANY TO CREATE A PLATFORM USER ACCOUNT, THIS SENTENCE DOES NOT APPLY TO YOU. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS PLATFORM AGREEMENT, YOU MUST NOT ACCEPT THIS PLATFORM AGREEMENT AND YOU MAY NOT USE THE SERVICES. ALL REFERENCES TO CUSTOMER INTELLIGENCE PLATFORM AGREEMENT IN ANY STATEMENT OR WORK OR ORDER OR ANY OTHER DOCUMENT SHALL BE TO THIS PLATFORM AGREEMENT.
1. Definitions. Terms and expressions not otherwise defined in the body of this Platform Agreement will have the following meanings:
- “Affiliate(s)” means any entity directly or indirectly controlling, controlled by, or under common control by Zeta.
- “Access Protocols” means login information, passwords, security protocols, and policies through which Authorized Users access the Platform.
- “Agreement” means, collectively, this Platform Agreement and any Master Services Agreement, Statement of Work or Orders signed by the parties from time to time, including all schedules and attachments thereto and all amendments to any of the foregoing.
- “Authorized User” means each of Customer’s employees, agents, and independent contractors who are provided Access Protocols by Customer or Zeta.
- “Customer Content” means any images, text or other content provided by Customer to Zeta for the purpose of furnishing the Services.
- “Customer Data” means all data or information provided by Customer about its business, including information relating to customers, employees, technology, operations, facilities, consumer markets, products, capacities, systems, procedures, software, formulae, security practices, research, development, business affairs and finances, innovations, inventions, designs, ideas, artwork, business methodologies, whether or not patentable and all related know-how, improvements, trade secrets, copyrightable and patentable subject matter and other similar information obtained by or submitted to Zeta by or on behalf of Customer in connection with the performance of the Services hereunder.
- “Control“, “controlling”, “controlled by”, or “common control” means, with respect to any entity, the power to direct, or cause the direction of, the management and policies of the entity, whether through ownership of voting securities, by contract or otherwise.
- “Customer“, “you” and “your” means the individuals or organization(s) identified in the Agreement responsible for payment to Zeta pursuant to the Agreement.
- “Platform” means any of the Zeta platforms for the provision and use of the services specified in the Agreement, including any administration websites through which Zeta provides access to such platforms and all software (including source and object code), updates, enhancements, documentation or other materials in or related to the platforms that Zeta makes available in the course of providing the services.
- “Term” has the meaning given to such term in the applicable Master Services Agreement, Statement of Work or Order.
- “Zeta”, “we” and “us” means the Zeta Global Corp. or its Affiliates, as stated in the applicable Master Services Agreement, Statement of Work or Order.
2. Zeta Platform. Zeta and Customer are entering into this Platform Agreement, pursuant to which Zeta will provide to Customer access to its proprietary marketing software platform that allows Authorized Users to access certain features and functions through a web interface to manage online marketing (“Software”). Customer acknowledges that Zeta may continually develop, deliver and provide to Customer ongoing innovation to the Platform, in the form of new features, functionality, and efficiencies. Accordingly, Zeta reserves the right to modify the Platform Agreement from time to time. The Platform shall be provided pursuant to Statements of Work or Order to be executed by the parties for each engagement (each, an “SOW” and collectively, the “SOWs”). Customer agrees and acknowledges that some services set forth in any SOW may be provided by third parties and Affiliates of Zeta. To the extent that the terms of this Platform Agreement and any SOW conflict, priority shall be given to the Platform Agreement and then to the SOW in that order.
3. Access, Rights and Restrictions. Subject to Customer’s compliance with the terms and conditions contained in this Platform Agreement, Zeta hereby grants to Customer a non- exclusive, non-transferable, non-sublicenseable, right to allow Authorized Users to access the Platform. Customer will use reasonable commercial efforts to maintain the appropriate administrative, technical and physical security safeguards, and will use reasonable commercial efforts to ensure that all Authorized Users maintain similar safeguards with respect to the Access
4. Protocols. Customer will be responsible for all acts and omissions of Authorized Users. Customer will notify Zeta immediately if it learns of any unauthorized use of any Access Protocols or any other known or suspected unauthorized access or unauthorized acquisition of data as a result of breach of security. Customer will not: (a) adapt, alter, modify, improve, translate or create derivative works of the Platform; (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Platform; and (c) except as may be specifically approved by Zeta in writing, provide any third party access to the Platform or use the Platform on behalf of any third party, including as part of a time-sharing, outsourcing or service bureau environment. Customer acknowledges and agrees that, as between Customer and Zeta, Zeta owns all right, title and interest in and to the Platform (including, without limitation, their underlying technology) and all related intellectual and proprietary rights of any kind anywhere in the world. Except for the limited license expressly granted in this Section, nothing in this Platform Agreement shall be construed as Zeta granting to Customer any right, title or interest in or to the Platform or any other intellectual property rights of Zeta. All rights not expressly granted are hereby reserved.
5. Fees. During the term of this Platform Agreement (“Term”), Customer shall pay to Zeta the fees set forth on the applicable SOW (collectively the “Fees”). Unless specified otherwise in any SOW, Customer shall pay the Fees to Zeta no later than thirty (30) days after the applicable invoice date from Zeta. In addition, Customer shall be responsible for all taxes in connection with the Platform (excluding taxes based on Zeta’s net income). All invoices shall be deemed accepted unless disputed in good faith within thirty (30) days after receipt thereof. If an invoice is disputed, Customer shall pay the undisputed portion of the invoice when due. Late payments shall accrue interest daily following the due date at the lesser of 1.5% per month or the maximum interest allowed by applicable law. In addition to any other rights and remedies provided by law or under this Platform Agreement, Zeta shall have the right to suspend Customer’s access to the Platform in case of late payment. Customer shall also pay to Zeta the costs and expenses, including reasonable attorney’s fees, incurred in collection of any delinquent amounts.
6. Tags and Data. Customer may deploy on the Customer web sites for which Customer is accessing the Platform as defined in the applicable SOW or Order (“Sites”) certain code provided by Zeta (a “Tag”) which is designed to send browser or device-linked data with respect to a Site (including relevant transaction information) to Zeta (“Data”). Customer shall not alter, copy, modify, sell, reuse, or divulge any Tags or other Zeta code without the prior written consent of Zeta. Customer agrees to leave the Tags up on the Sites for the Term in a properly functioning manner for the delivery of the Platform. Upon Zeta’s request, Customer shall update or remove the Tags immediately on any Sites specified by Zeta. Customer grants to Zeta a non-exclusive worldwide license to use the Data for its internal business and marketing purposes, which include building statistical models, scoring cookies, and executing behavioral targeting utilizing the Data. Customer will own any statistics, reports, or other data derived by the Software from the Data and provided or made available by Zeta to Customer, but will use the same only for its internal business purposes. Zeta is granted the right to use, process and aggregate personal data for analytical and statistical purposes and may disclose and distribute any resulting anonymous aggregated data in a form that is not identifiable to Customer.
7. Customer’s Representations, Warranties and Responsibilities. Customer represents and warrants that: (a) it has the right to enter this Platform Agreement and to grant the rights granted herein; (b) it owns or has the right to use the content it provides or makes available to Zeta in connection with the Platform, including its Sites and the Data; (c) the use of the Customer Content will not infringe on the rights of third parties or violate any applicable laws;
8. Customer Content and Customer Data. Customer hereby grants Zeta a limited, worldwide, non-exclusive, non-transferable license, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Content and Customer Data solely for the purpose of supporting Customer’s use of the Services and providing Services to Customer. Subject only to the limited license expressly granted herein, Customer shall retain all right, title and interest in and to the Customer Content and Customer Data and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Zeta any right of ownership or interest in the Customer Content or Customer Data or the Intellectual Property Rights therein.
9. System Data. Notwithstanding anything to the contrary herein or in any other agreement between the parties, Zeta may also use de-identified data and analytics derived from the use of the Services (“System Data”), including but not limited to internet communication protocol and deliverability data, click through rates, open rates, and bounce back rates, for the purpose of supporting, developing and performing the Services for Customer or for other Zeta Customers, provided that when doing so, Zeta shall only use System Data in a manner excluding Customer Data.
10. Term and Termination. In the event of a material breach of this Agreement which is not cured within thirty (30) days of written notice thereof, the non-breaching party may terminate this Agreement upon written notice. Zeta may terminate this Agreement or suspend Customer’s access to the Platform at any time upon written notice on behalf of any one or all of the Sites if the Customer Content violates the terms of this Agreement or if Customer endangers the security or availability of the Platform. Either party may terminate this Agreement upon written notice to the other party in the event that the other party files a petition in bankruptcy or proceedings in bankruptcy are instituted against it, or any court assumes jurisdiction of such party and its assets pursuant to proceedings under any bankruptcy or reorganization act, or a receiver is appointed of that party’s assets or that party makes an assignment for the benefit of its creditors. Following any termination, Customer shall pay to Zeta the Fees incurred through the date of termination. Customer agrees to immediately remove all Tags upon termination of this Agreement in its entirety, or to remove Tags from a specific Site in case of termination with respect to that Site. The provisions of this Agreement that are intended to survive shall so survive after termination.
11. Confidentiality. “Confidential Information” shall mean any information of either party which is, or should be, reasonably understood to be confidential or proprietary to the disclosing party, including, but not limited to, any information concerning: (i) the disclosing party’s proprietary technology and products, including without limitation, the Platform; and (ii) the disclosing party’s operations and business or financial plans or strategies and product pricing, disclosed to the receiving party by the disclosing party, either directly or indirectly, in writing, orally, electronically, or by drawings or inspection of materials or facilities. Confidential Information shall not include information which the receiving party can demonstrate: (a) is known to the receiving party at the time of the disclosure by the disclosing party, as evidenced by written records of the receiving party; (b) has become publicly known and made generally available through no wrongful act of the receiving party; (c) has rightfully been received by the receiving party from a third party who is authorized by the disclosing party to make such disclosures; (d) was independently developed by the receiving party without any use of the Confidential Information of the disclosing party and by employees of the receiving party who have not had access to the Confidential Information, as demonstrated by files created at the time of such independent development; (e) is disclosed generally to third parties by the disclosing party without restrictions similar to those contained in this Agreement; or (f) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party shall provide prompt notice of such court order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. The receiving party shall treat as proprietary and shall maintain in strict confidence all Confidential Information of the disclosing party and shall not, without the express prior written consent of the disclosing party, disclose such Confidential Information to third parties or use any such Confidential Information other than in furtherance of its obligations hereunder. The receiving party will only disclose such information to its officers, directors, employees, agents and contractors to the extent they have a need to know the information in order to perform its obligations under this Agreement and shall ensure that these persons are bound in writing to provisions no less stringent than those contained in this Section. Confidential Information may only be copied to the extent reasonably necessary for the purposes of this Agreement on a strict need to know basis and all such authorized copies shall include the same proprietary, copyright and/or trade secret legends as the original. Upon the disclosing party’s request or termination of this Agreement, receiving party shall destroy all copies of disclosing party’s Confidential Information and all tangible embodiments thereof and provide written certification thereof except that one copy of all such Confidential Information may be retained by the receiving party’s legal function solely for the purpose of ensuring compliance with this Agreement.
12. Feedback. Zeta in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Customer to Zeta in connection with its access to and use of the Platform (all reports, comments and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”). Customer hereby grants to Zeta a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Zeta products and services.
14. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of New York, without regard to any conflict of law provisions thereof. All parties agree that any claims, legal proceeding or litigation arising in connection with this Agreement will be brought solely in the United States District Court for the Southern District of New York (Manhattan) or, if federal jurisdiction is not available, in a court of competent jurisdiction in the County and State of New York., and the parties consent to the jurisdiction of such courts.
15. Warranty Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ZETA, ITS PARENT, AFFILIATES, SUPPLIERS, LICENSORS AND PARTNERS AND ALL OF THEIR OFFICERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES (“THE ZETA PARTIES”) DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE PLATFORM, INCLUDING WITHOUT LIMITATION THE SOFTWARE, OR DELIVERABLES PROVIDED HEREUNDER OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY THIRD PARTY SOFTWARE, OR SERVICES USED IN CONNECTION WITH THE PLATFORM) REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. THE ZETA PARTIES DO NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION.
16. Limitation of Liability; Indemnification. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ZETA AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE) WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ZETA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLAIMS FOR DAMAGES MUST BE MADE BY CUSTOMER WITHIN ONE (1) YEAR OF THE INCIDENT TO WHICH THEY RELATE OR BE FOREVER BARRED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ZETA’S TOTAL LIABILITY TO CUSTOMER UNDER ANY AND ALL CIRCUMSTANCES SHALL NOT EXCEED THE AGGREGATE FEES (EXCLUDING PASS THROUGH FEES AND FEES PAID TO THIRD PARTIES) PAID BY CUSTOMER TO ZETA UNDER THIS AGREEMENT DURING THE SIX MONTHS PRECEDING THE DATE THAT THE CLAIM IS MADE GIVING RISE TO THE LIABILITY. Customer agrees to defend, indemnify and hold the Zeta Parties harmless against any and all third party actions, suits, proceedings, claims, judgments, damages, costs and expenses, including reasonable attorney’s fees, and other liabilities (collectively, “Claims”) arising from or related to the Customer Content, the Customer Marks or Customer’s breach of its express representations and warranties in this Agreement. Zeta agrees to defend, indemnify and hold Customer, its Affiliates and all of their directors,
officers, employees, agents, shareholders, partners, members or other owners, harmless against any and all Claims that the Software infringes any third-party intellectual property rights. Zeta’s indemnification obligation will not apply if the alleged Claim arises, in whole or in part, from: (a) any use of the Software by the Customer or any Authorized User not in accordance with this Agreement; (b) any modification of the Software by any person other than Zeta or its authorized agents; or (c) any use of the Software in combination with other products, equipment, software or data not supplied by Zeta. The foregoing indemnification obligations are conditioned upon the indemnified party: (a) providing prompt written notice to the indemnifying party of any such Claim (provided that the failure to provide prompt notice shall only relieve the indemnifying party of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (b) permitting the indemnifying party to assume and control the defense of such Claim; and (c) providing to the indemnifying party at the indemnifying party’s reasonable expense all available information and assistance reasonably necessary for the indemnifying party to defend such Claim. The indemnifying party will not enter into any settlement or compromise of any such Claim, which settlement or compromise would result in any liability to the indemnified party, without the indemnified party’s prior written consent.
17. Miscellaneous. All notices under this Agreement (other than routine operational communications) shall be in writing and shall be deemed duly given upon receipt, and may be delivered by: (a) hand; (b) express courier with a reliable system for tracking delivery; (c) confirmed facsimile with a copy sent by another means specified in this Section; or (d) registered or certified mail, return receipt requested, postage prepaid, and addressed to the recipients as set forth above. This Agreement represents the entire agreement between the parties with respect to the subject matter covered by this Agreement. No other agreement (whether written or oral), statement, or promise made by any party, or by any employee, officer, or agent of any party regarding this subject matter, that is not contained in this Agreement shall be binding or valid, unless such agreement shall be in writing and signed by the parties hereto after the execution of this Agreement. Customer may not assign this Agreement without the prior written approval of Zeta which shall not be unreasonably withheld or delayed. Any assignment in violation of this Section shall be void ab initio. The failure of either party to this Agreement to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of the Agreement. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations (other than Customer’s payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such party. Zeta shall endeavor to guard against any loss to Customer as the result of the failure of media or other suppliers to properly execute their commitments, but Zeta shall not be responsible for any such failure. In the event that any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. The relationship of Zeta to Customer is that of an independent contractor, and this Agreement shall not create any franchise, joint venture, partnership, or similar relationship. Except as expressly provided in this Agreement, neither party shall represent itself as an agent or employee of the other party.
October 15, 2020