Contracts
Zemanta One Master Services Agreement
Effective March 5, 2020
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Zemanta One Platform Master Service Agreement
This Zemanta One Platform Master Service Agreement, including the Order Form and any terms set forth in a schedule or Exhibit hereto (collectively, this “Agreement”), dated as of Effective Date on the Order Form is entered into by Zemanta, Inc. (“Zemanta”) and the customer whose details are set forth on the Order Form (“Customer”).
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions
“Advisory Services” means Zemanta will provide support and assistance with Customer’s content advertising campaign set up and management as well as proactive campaign monitoring. Customer will be solely responsible for managing any campaigns including making any setting changes (e.g., including, not limited to bid prices, start and stop dates and times, and spend allocations).
"Agency" or "Managed Service Provider" means the advertising, media or creative agency or other professional services company that will provide services to a Client in order to conduct advertising campaigns on the client's behalf through the Zemanta One Platform.
“Applicable Law” means a law, rule, regulation, declaration, decree, directive, statute, or other enactment, order, mandate or resolution issued or enacted by any government entity (including any domestic or foreign, supranational, national, state, county, municipal, local, territorial or other government), or applicable guidelines or principles issued by any governmental entity.
“Client" means Customer or an advertising client of Customer.
“Content” means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.
"Customer" means the entity contracting with Zemanta in order to use the Zemanta One Platform. If the Customer is an Agency, then Customer may be referred to as Customer or Agency.
“Customer Content” means all Content made available by Customer or its Users to Zemanta for use in connection with the Services or that is otherwise uploaded onto the Zemanta One Platform by or on behalf of Customer or its Users.
“Data Protection Laws” means any applicable Data Protection Laws. It shall include (a) the Data Protection Directive 95/46/EC and ePrivacy Directive 2002/58/EC as implemented by countries within the EEA, (b) the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and/or (c) other Laws that implement the Laws that are identified in (a) and (b) above. The terms "Personal Data”, and “Processing” shall have the same meaning ascribed to them under the GDPR.
“Documentation” user documentation, in any form, provided by Zemanta relating to the Services (e.g., online help files) generally provided by Zemanta to its customers.
“Force Majeure” is defined as acts of God, terrorism, labor action, fire, flood, earthquake, governmental acts, order, or restriction, denial of service attacks and other malicious conduct, utility failures, or any other cause of Service unavailability that was beyond Zemanta’s reasonable control.
"Insertion Order" or "Order Form" are used interchangeably in this document and carry the same meaning for the purposes of this agreement.
“Objectionable Content” means any viruses, malware or malicious code, as well as any Content or links to web sites that contain Content (or further links to content) which could be reasonably construed as illegal, unethical, defamatory, obscene, hateful, libelous, or that otherwise could be reasonably determined to reflect negatively, in a material way, upon Zemanta’s reputation or that of Zemanta’s customers, or that infringes upon the rights of any third party.
"Platform Credits" means the amount of credit that Zemanta will provide to the Customer through Customer’s account on the Zemanta One Platform. Platform Credits are used to fund campaign budgets created and managed by the Customer on the Zemanta One Platform. Campaign budgets are used to buy media programmatically via the Zemanta One Platform.
“Platform Services” means the hosted software-as-a-service offering made available by Zemanta to Customer via the Zemanta One Platform in accordance with the then-current Documentation, as more fully described in Exhibit A.
“Professional Services” means the additional services (if any) that may be provided by Zemanta personnel on behalf of Customer pursuant to a separate Statement of Work (“SOW”).
“Seat” means a written contractual relationship with a supplier (e.g., Outbrain, Appnexus, Google AdExchange, etc.) governing the terms of ad inventory supply and purchase from such supplier, including a direct billing relationship between the Seat holder and supplier.
“Services” means, where applicable, the Advisory Services, Professional Services, and Zemanta One Platform services.
“Scheduled Maintenance” is defined as any maintenance performed during Zemanta’s standard maintenance windows and any other maintenance of which Customer is given at least forty-eight (48) hours advance notice. Zemanta may perform maintenance on some or all of the Zemanta One Platform in order to upgrade hardware or software that operate or supports the Zemanta One Platform, implement security measure, or address any other issues it deems appropriate for the continued operation of the Zemanta One Platform.
“Third Party Terms” means the terms and conditions for use of services from third parties made available to Customer through the Zemanta One Platform, as described in Exhibit B.
"Total Spend" means the sum of all spend recorded in the Zemanta Platform inclusive of media spend, data costs and platform fees.
“User” means an employee, agent or contractor of Customer or its Client who has been authorized by Customer to use the Services on behalf of Customer and its Clients.
“Zemanta Content” means all Content made available by Zemanta to Customer in connection with Customer’s use of the Services or that is otherwise uploaded onto the Zemanta One Platform by Zemanta on behalf of Customer or its Users.
“Zemanta One Platform” means Zemanta’s proprietary dashboard used to buy online media, and flight and manage campaign(s).
2. Services
(a) License. Subject to the terms and conditions of this Agreement (including the timely payment of all applicable fees), Zemanta hereby grants Customer and its Users a non-exclusive, non-transferable, right and limited license to access and use the Services during the term of this Agreement solely for use on behalf of Customer and its Clients. Customer will ensure that Customer and its Users comply with the terms and conditions of this Agreement, all Applicable Law and Data Protection Laws, and the Third-Party Terms set forth on Exhibit B hereto, as applicable. As between Customer and Zemanta, Customer shall be solely responsible for ensuring that its use of the Services complies with all self-regulatory best practice standards including, but not limited to the IAB Code of Conduct, Network Advertising Initiatives (NAI) Self-Regulatory Principles, the NAI Web Beacon Guidelines and the FTC Self-Regulatory Principles for Online Behavioral Advertising.
(b) Equipment. Customer is responsible for procuring and maintaining the equipment and network connections necessary to remotely connect to the Services. Customer shall not attempt to access any other of Zemanta’s systems, programs or data that are not made available for Customers use in connection with the Services.
(c) Customer Responsibility/Restrictions. Customer is solely responsible for (i) all activities conducted under its logins (including its Users’ logins) within the Zemanta One Platform and for its Users' compliance with this Agreement; (ii) protecting its login and password to the Zemanta One Platform and (iii) and any requests or changes made by Customer (or its Users’) within the Zemanta One Platform. If Customer is utilizing Zemanta’s automation feature within the Zemanta One Platform, Customer grants Zemanta the right to set and modify Customer’s bidding at Zemanta’s discretion to aid in achieving Customer’s goals for its campaign(s). If Customer requests Zemanta to make changes to its campaign(s) on Customer’s behalf, all such requested changes must conveyed previously in writing.
Unauthorized use, resale or commercial exploitation of the Zemanta One Platform in any way is expressly prohibited. Customer represents and warrants (i) it will not upload to or otherwise authorize or permit any Objectionable Content to run through the Zemanta One Platform and that any ads or data being authorized or permitted by Customer to run through the Zemanta One Platform will be free of viruses and malicious code (ii) it is authorized to act on behalf of each of its Clients, will ensure that such Clients and all Users comply with the applicable terms and conditions of this Agreement and will be liable for the acts and omissions of such Clients and Users in connection with Zemanta One Platform provided under this Agreement or for any breach of this Agreement by such Clients or Users; (iii) it will not attempt to interfere with or disrupt the integrity or performance of the Zemanta One Platform or the data contained therein or attempt to gain unauthorized access to the Zemanta One Platform or its related systems or networks, and (iv) it will not directly or indirectly reverse engineer, prepare derivative works of reverse compile or disassemble the Zemanta One Platform or any portion thereof or permit any User or third party to do the same. Customer shall also be solely responsible for maintaining the security of any passwords and/or access codes assigned and shall immediately notify Zemanta if Customer becomes aware of any loss or theft or unauthorized use of any of Customers passwords or user accounts. Zemanta reserves the right, upon notice to Customer, to terminate any User’s rights to access the Zemanta One Platform if such User has violated any of the terms, conditions or restrictions contained in this Agreement.
3. Service Level Objective
(a) Service Level. Zemanta’s service level objective is to make commercially reasonable efforts to provide Service Availability of 99% as measured on a monthly basis (“Service Availability Objective”). “Service Availability” is defined as the time that the Service is capable of receiving, processing, and responding to requests, excluding Scheduled Maintenance and Force Majeure. Service Availability is calculated as a percentage by dividing the number of minutes the Service is available during the applicable month by the number of total minutes in the applicable month, excluding in all cases Scheduled Maintenance and Force Majeure. Zemanta will provide notice of downtime on its platform website http://one.zemanta.com and through registered user accounts.
(b) Remedy for Failure to Achieve Service Zemanta’s Service Level Objective. If either (i) Zemanta fails to achieve the System Availability Objective set forth above for thirty (30) consecutive days in a row or sixty (60) days in any twelve (12) month period or (ii) Zemanta’s Service Availability is less than 50% for ten (10) consecutive days, Customer shall be entitled, as its sole remedy, to terminate this Agreement for convenience upon written notice to Zemanta in which case Customer shall receive a refund of any prepaid, unused fees paid hereunder to Zemanta.
4. Payment
(a) Payment. Customer will pay its Total Spend and all applicable fees (as set forth on the Order Form) and media costs associated with any Third-Party Terms, and any applicable taxes, thirty (30) days from receipt of Zemanta’s invoice. This includes any and all fees incurred by Customer, Customer’s Clients, or Customer’s Users related to the use of the Zemanta One Platform. Payments may be made by ACH, check, wire transfer or other means expressly agreed to in writing by Zemanta. All payments will be made in US Dollars. For the avoidance of doubt Customer shall be billed for Total Spend regardless of any cost-per-click denoted in the Zemanta One Platform.
(b) Late Payment. Customer agrees to pay a late charge of two percent (2%) per month (or part of a month, or the maximum lawful rate permitted by Applicable Law, whichever is less), for all amounts, not subject to a good faith dispute, and not paid within sixty (60) days of being due. Customer shall be solely and exclusively responsible for the payment of required federal, state and local taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Zemanta and any taxes or obligations imposed upon Zemanta under federal, state and local wage laws. Customer will also reimburse Zemanta for all costs and expenses Zemanta incurs in collecting or seeking to collect any late payments that are not disputed in good faith (including court costs and reasonable attorneys’ fees). Zemanta also reserves the right to suspend or terminate Customer's use of the Service until Customer has paid all amounts due and to charge Customer for all costs of collection, including collection agency and reasonable legal fees and court costs. Customer authorizes Zemanta to investigate Customer's credit record. If applicable, Customer agrees to provide such further financial information and documentation as may be required from time to time by Zemanta as a condition for the continued extension of credit. Customer acknowledges and agrees that any account, credit card and related billing and payment information which Customer provides to Zemanta may be shared by Zemanta with companies who work on Zemanta's behalf solely for the purpose of performing credit checks, effecting payment to Zemanta, collecting debts owed to Zemanta and/or servicing Customer's account. Zemanta may, in its sole discretion, extend, revise or revoke credit at any time.
(c) Payment Dispute. If Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the parties, Customer shall pay the amounts due under this Agreement less the disputed amount, and the parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Customer delivers a written statement to Zemanta on or before seven (7) days after invoice has been issued, describing in detail the basis of the dispute and the amount being withheld by Customer, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Customer that are not in dispute have been paid as and when required under this Agreement.
5. Ownership
(a) Customer Ownership. Customer retains ownership of all right, title and interest in and to all Customer Content. During the term of this Agreement, Customer hereby grants to Zemanta a limited, worldwide, non-exclusive, royalty free right to use, display, transmit, and distribute the Customer Content solely as necessary to provide the Services to Customer. Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Content. The accuracy of Customer Content shall be Customer’s sole responsibility.
(b) Zemanta Ownership. Customer acknowledges and agrees that (i) as between Zemanta and Customer, all right, title and interest in and to the Zemanta One Platform, the Services and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain with Zemanta or its licensors, and Zemanta in no way conveys any right or interest in the Zemanta One Platform or the Services other than a limited license to use them in accordance with the terms of this Agreement, and (ii) the Zemanta One Platform and the Services are works protected by copyright, trade secret, and other proprietary rights and laws. As between Customer and Zemanta, Zemanta will also own all data derived from use of the Zemanta One Platform and may use and disclose such data (i) to provide the Services and for internal media planning purposes, (ii) as aggregate Services statistics, which will not include personally identifiable information or identify Customer or its Clients, and (iii) if required by court order, law or governmental or regulatory agency (after giving reasonable notice to Customer, if permitted). Notwithstanding the foregoing, nothing herein shall prohibit Zemanta from using anonymous aggregated data for purposes of system performance and tuning. The Zemanta name, the Zemanta logo, and the product names associated with the Services are trademarks of Zemanta or third parties, and no right or license is granted to use them. Customer shall not remove any Zemanta trademark or logo from the Services. Zemanta retains ownership of all right, title and interest in and to all Zemanta Content. During the term of this Agreement, Zemanta grants to Customer a limited, worldwide, non-exclusive, royalty free right to use, display, transmit, and distribute the Zemanta Content solely in connection with Customer’s permitted use of the Services. No press releases or general public announcements shall be made without the mutual consent of Customer and Zemanta. Zemanta shall have the right to include Customer’s name on Zemanta’s client list and in other marketing materials. Customer shall not use Zemanta’s name, logo or trademark without Zemanta’s prior written consent.
6. Confidentiality
(a) During the term of this Agreement, each party will regard any information provided to it by the other party to be confidential (“Confidential Information”). Confidential Information shall also include information, which to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, Client, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event less than reasonable care be used. The parties expressly agree that the terms and pricing of this Agreement are the Confidential Information of Zemanta. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
(b) Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement, or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of Applicable Law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
Notwithstanding any other provision of this Agreement, both parties acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under Applicable Law.
7. Data Protection/Privacy
The parties acknowledge that some or all of data used or collected through the Service may qualify as, or include, personal data, however, as of the Effective Date, Zemanta does not send and/or receive any end-user data to the Customer. Each party warrants and represents to (i) comply with all Data Protection Laws; and (ii) maintaining and displaying on their respective websites an easily accessible and discoverable privacy policy that complies with the applicable data protection laws. Customer acknowledges and agrees that it is Customer’s responsibility to ensure that its use of the Services complies with all Data Protection Laws, including that Customer’s use of any third party cookies and/or pixels in its campaign(s), and the capturing of any consent to such cookies and/or pixels, is in accordance with Data Protection Laws.
8. Indemnification
(a) Zemanta Indemnification. Subject to subsection (c) below, Zemanta will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorney’s fees) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any third party against Customer (i) alleging that the use of the Services as permitted hereunder infringes any United States patent, copyright or trademark, or constitutes a misappropriation of a trade secret of a third party, (ii) arising out of Zemanta’s breach of any of its representations, warranties or covenants made in this Agreement or (iii) that is attributable to or otherwise alleges any violation of any Applicable Law by Zemanta, including without limitation, compliance with data privacy and data protection laws. The foregoing obligations will not apply to the extent the claim arises as a result of (a) any use of the Services in a manner other than as specified in this Agreement, (b) any use of the Services in combination with other products, equipment, devices, software, systems or data not supplied by Zemanta to the extent such claim is caused by such combination; (c) any alteration, modification or customization of the Services made by any party other than Zemanta or Zemanta’s authorized representatives if such infringement would not have occurred without such alteration, modification or customization or (d) any services of third parties made available to Customer through its use of the Services. lf Customer’s use of the Services is, or in Zemanta’s opinion is likely to be, enjoined as an infringement or misappropriation of any third-party intellectual property right, Zemanta shall at its discretion and expense: (i) procure for Customer the right to continue to use the Services under the terms of this Agreement; (ii) replace or modify the Services or portions thereof so that it is non-infringing and substantially equivalent in function to the Services as enjoined; or (iii) terminate this Agreement in whole or in part and refund to Customer any prepaid, unused fees paid hereunder for the infringing Services.
(b) Customer Indemnification. Subject to subsection (c) below, Customer will indemnify, defend, and hold Zemanta harmless from and against any and all Losses resulting from any claim, suit, action, or proceeding brought by any third party against Zemanta (i) alleging that any content or materials supplied by Customer or its Clients or any use thereof, infringes the intellectual property rights, proprietary or privacy rights of others, or has caused harm to a third party, (ii) arising out of Customer’s breach any of its representations, warranties or covenants made in this Agreement or (iii) that is attributable to or otherwise alleges any violation of any Applicable Law by Customer, including without limitation, compliance with Data Protection Laws. Customer also agrees to indemnify, defend, and hold Zemanta harmless from and against any and all Losses resulting from any Objectionable Content used or transmitted by Customer or any of its Users in violation of this Agreement.
(c) Indemnification Procedure. With respect to any third party claims or proceedings, the indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement provided that the indemnifying party will not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).
9. Representations and Warranties
(a) Zemanta’s Representation and Warranties. Zemanta represents and warrants that the Services will comply in all material respects with the description of the Services found in this Agreement, the current Documentation or SOW, as the case may be. The foregoing shall not be construed as a warranty that the Services will function without error or interruption. For any breach of the warranty set forth above, both parties’ sole and exclusive remedy, except for termination of this Agreement as described in Section 12, and Zemanta’s entire liability shall be, for Zemanta to use commercially reasonable efforts to correct the defect or error that caused the breach of warranty.
(b) Customer’s Representation and Warranties. Customer represents and warrants to Zemanta that: (i) Customer is a duly organized under the laws of the state in which it is domiciled and Customer has all right and authority to enter into this Agreement; (ii) Customer has all necessary rights, licenses and permission for Customer Content and the Customer Content will not violate any intellectual property right, proprietary rights or rights of privacy of any third party and the Customer Content will not be objectionable as defined in section 2(c) above; (iii) Customer is authorized to take all actions under the terms of this Agreement on behalf of Customer’s Clients; and (iv) Customer will comply with all Data Protection Laws (including complying with all laws related to data collection) and Customer has a privacy policy on its website.
10. ZEMANTA’S DISCLAIMERS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, THE ZEMANTA ONE PLATFORM AND ANY SERVICES PROVIDED BY ZEMANTA IN CONNECTION WITH THIS AGREEMENT, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ZEMANTA EXPRESSLY DISCLAIMS, ON ITS BEHALF AND ON ITS SUPPLIERS BEHALVES, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF ZEMANTA OR ITS SUPPLIERS.
11. LIMITATIONS OF LIABILITY
NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ZEMANTA TO CUSTOMER’S CLIENTS OR USERS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 5 (OWNERSHIP), A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 OR A PARTYS INDEMNIFICATION OBLIGATIONS IN SECTION 8, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER FOR ANY AND ALL DAMAGES AND CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR OWED BY CUSTOMER TO ZEMANTA UNDER THIS AGREEMENT DURING THE SIX MONTH PERIOD THE DATE OF THE ACTION OR CLAIM FOR THE SERVICES.
12. Term and Termination
(a) Term. Subject to earlier termination as described herein, the term of this Agreement shall commence on the Effective Date as defined on the Order Form and shall continue in effect for an initial term as defined on the Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one-year periods each (each, a “Renewal Term”) unless either party elects not to renew the Agreement by providing written notice to the other party no fewer than 60 days prior to the expiration of the then current term.
(b) Termination. Notwithstanding the foregoing, either party may terminate this Agreement (i) immediately in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Z In the event that Customer violates Applicable Law in connection with its use of the Services or otherwise uses or transmits any Objectionable Content in violation of this Agreement Zemanta may suspend Customer’s access to the Services until such time as Customer is no longer in violation of Applicable Law and/or has removed Objectionable Content. Termination of this Agreement pursuant to this Section (b) shall be in addition to any other rights or remedies available to the terminating party at law and in equity. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement (including, without limitation, Sections 6, 7, 8, 11 and 12, and all payment obligations relating to the period prior to termination.
(c) Suspension. Zemanta also reserves the right, in its good faith reasonable discretion, to suspend or otherwise pause any advertising campaign being run through the Services for material non-compliance with supplier terms or in the event that Customer materially breaches any of the terms and conditions of this Agreement or any Third Party Terms, including, without limitation, any failure by customer to make payments in a timely fashion in accordance with Section 4. If an advertising campaign is paused, Zemanta will promptly notify the Customer.
13. General
This Agreement will not be interpreted or construed as creating or evidencing any association, joint venture, partnership, or franchise between the parties. Except as expressly stated herein, the provisions of this Agreement are for the benefit of the parties to this Agreement and not for any other person or entity. Customer may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Zemanta (such consent not to be unreasonably withheld or delayed). Any such assignment will be void and of no force or effect. Zemanta may assign this Agreement without restriction to a purchaser of all or substantially all of Zemanta’s assets, a successor in interest of Zemanta or as part of a corporate reorganization, consolidation or merger. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Any notice under this Agreement will be effective if in writing and sent by email, certified or registered mail, or insured courier, return receipt requested, to a party at its address or email address given below. Each party may update its address or email by notice to the other party in accordance with this Section. Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of New York, USA, without reference to its choice of law rules and not including the provisions of the 1980 US Convention on Contracts for the International Sale of Goods. Each party hereby consents irrevocably to the exclusive jurisdiction and venue of the federal, state, and local courts in New York, New York, in connection with any action arising out of or in connection with this Agreement. Either party’s waiver of any breach of any provision of this Agreement does not waive any other breach. Either party’s failure to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such party’s right to demand strict performance in the future. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. This Agreement may be executed in multiple counterparts with the same effect as if the parties had signed one document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures. This Agreement, including the Order Form, all SOWs and Exhibits hereto and terms and policies referenced in this Agreement constitute the final and complete expression of the agreement between Customer and Zemanta regarding their subject matter. This Agreement supersedes, and its terms govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by Zemanta. No employee, agent, or other representative of Zemanta has any authority to bind Zemanta with respect to any representation, warranty, or other expression unless it is specifically set forth in this Agreement. No employee, agent or other representative of Customer has any authority to bind Customer with respect to any representation, warranty or other expression unless it is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the provisions of this Agreement. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.
Effective January 28, 2020 to March 5, 2020
DownloadTable of Contents
Zemanta One Platform Master Service Agreement
This Zemanta One Platform Master Service Agreement, including the Order Form and any terms set forth in a schedule or Exhibit hereto (collectively, this “Agreement”), dated as of Effective Date on the Order Form is entered into by Zemanta, Inc. (“Zemanta”) and the customer whose details are set forth on the Order Form (“Customer”).
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions
“Advisory Services” means Zemanta will provide support and assistance with Customer’s content advertising campaign set up and management as well as proactive campaign monitoring. Customer will be solely responsible for managing any campaigns including making any setting changes (e.g., including, not limited to bid prices, start and stop dates and times, and spend allocations).
"Agency" or "Managed Service Provider" means the advertising, media or creative agency or other professional services company that will provide services to a Client in order to conduct advertising campaigns on the client's behalf through the Zemanta One Platform.
“Applicable Law” means a law, rule, regulation, declaration, decree, directive, statute, or other enactment, order, mandate or resolution issued or enacted by any government entity (including any domestic or foreign, supranational, national, state, county, municipal, local, territorial or other government), or applicable guidelines or principles issued by any governmental entity.
“Client" means Customer or an advertising client of Customer.
“Content” means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.
"Customer" means the entity contracting with Zemanta in order to use the Zemanta One Platform. If the Customer is an Agency, then Customer may be referred to as Customer or Agency.
“Customer Content” means all Content made available by Customer or its Users to Zemanta for use in connection with the Services or that is otherwise uploaded onto the Zemanta One Platform by or on behalf of Customer or its Users.
“Data Protection Laws” means any applicable Data Protection Laws. It shall include (a) the Data Protection Directive 95/46/EC and ePrivacy Directive 2002/58/EC as implemented by countries within the EEA, (b) the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and/or (c) other Laws that implement the Laws that are identified in (a) and (b) above. The terms "Personal Data”, and “Processing” shall have the same meaning ascribed to them under the GDPR.
“Documentation” user documentation, in any form, provided by Zemanta relating to the Services (e.g., online help files) generally provided by Zemanta to its customers.
“Force Majeure” is defined as acts of God, terrorism, labor action, fire, flood, earthquake, governmental acts, order, or restriction, denial of service attacks and other malicious conduct, utility failures, or any other cause of Service unavailability that was beyond Zemanta’s reasonable control.
"Insertion Order" or "Order Form" are used interchangeably in this document and carry the same meaning for the purposes of this agreement.
“Objectionable Content” means any viruses, malware or malicious code, as well as any Content or links to web sites that contain Content (or further links to content) which could be reasonably construed as illegal, unethical, defamatory, obscene, hateful, libelous, or that otherwise could be reasonably determined to reflect negatively, in a material way, upon Zemanta’s reputation or that of Zemanta’s customers, or that infringes upon the rights of any third party.
"Platform Credits" means the amount of credit that Zemanta will provide to the Customer through Customer’s account on the Zemanta One Platform. Platform Credits are used to fund campaign budgets created and managed by the Customer on the Zemanta One Platform. Campaign budgets are used to buy media programmatically via the Zemanta One Platform.
“Platform Services” means the hosted software-as-a-service offering made available by Zemanta to Customer via the Zemanta One Platform in accordance with the then-current Documentation, as more fully described in Exhibit A.
“Professional Services” means the additional services (if any) that may be provided by Zemanta personnel on behalf of Customer pursuant to a separate Statement of Work (“SOW”).
“Seat” means a written contractual relationship with a supplier (e.g., Outbrain, Appnexus, Google AdExchange, etc.) governing the terms of ad inventory supply and purchase from such supplier, including a direct billing relationship between the Seat holder and supplier.
“Services” means, where applicable, the Advisory Services, Professional Services, and Zemanta One Platform services.
“Scheduled Maintenance” is defined as any maintenance performed during Zemanta’s standard maintenance windows and any other maintenance of which Customer is given at least forty-eight (48) hours advance notice. Zemanta may perform maintenance on some or all of the Zemanta One Platform in order to upgrade hardware or software that operate or supports the Zemanta One Platform, implement security measure, or address any other issues it deems appropriate for the continued operation of the Zemanta One Platform.
“Third Party Terms” means the terms and conditions for use of services from third parties made available to Customer through the Zemanta One Platform, as described in Exhibit B.
"Total Spend" means the sum of all spend recorded in the Zemanta Platform inclusive of media spend, data costs and platform fees.
“User” means an employee, agent or contractor of Customer or its Client who has been authorized by Customer to use the Services on behalf of Customer and its Clients.
“Zemanta Content” means all Content made available by Zemanta to Customer in connection with Customer’s use of the Services or that is otherwise uploaded onto the Zemanta One Platform by Zemanta on behalf of Customer or its Users.
“Zemanta One Platform” means Zemanta’s proprietary dashboard used to buy online media, and flight and manage campaign(s).
2. Services
(a) License. Subject to the terms and conditions of this Agreement (including the timely payment of all applicable fees), Zemanta hereby grants Customer and its Users a non-exclusive, non-transferable, right and limited license to access and use the Services during the term of this Agreement solely for use on behalf of Customer and its Clients. Customer will ensure that Customer and its Users comply with the terms and conditions of this Agreement, all Applicable Law and Data Protection Laws, and the Third-Party Terms set forth on Exhibit B hereto, as applicable. As between Customer and Zemanta, Customer shall be solely responsible for ensuring that its use of the Services complies with all self-regulatory best practice standards including, but not limited to the IAB Code of Conduct, Network Advertising Initiatives (NAI) Self-Regulatory Principles, the NAI Web Beacon Guidelines and the FTC Self-Regulatory Principles for Online Behavioral Advertising.
(b) Equipment. Customer is responsible for procuring and maintaining the equipment and network connections necessary to remotely connect to the Services. Customer shall not attempt to access any other of Zemanta’s systems, programs or data that are not made available for Customers use in connection with the Services.
(c) Customer Responsibility/Restrictions. Customer is solely responsible for (i) all activities conducted under its logins (including its Users’ logins) within the Zemanta One Platform and for its Users' compliance with this Agreement; (ii) protecting its login and password to the Zemanta One Platform and (iii) and any requests or changes made by Customer (or its Users’) within the Zemanta One Platform. If Customer is utilizing Zemanta’s automation feature within the Zemanta One Platform, Customer grants Zemanta the right to set and modify Customer’s bidding at Zemanta’s discretion to aid in achieving Customer’s goals for its campaign(s). If Customer requests Zemanta to make changes to its campaign(s) on Customer’s behalf, all such requested changes must conveyed previously in writing.
Unauthorized use, resale or commercial exploitation of the Zemanta One Platform in any way is expressly prohibited. Customer represents and warrants (i) it will not upload to or otherwise authorize or permit any Objectionable Content to run through the Zemanta One Platform and that any ads or data being authorized or permitted by Customer to run through the Zemanta One Platform will be free of viruses and malicious code (ii) it is authorized to act on behalf of each of its Clients, will ensure that such Clients and all Users comply with the applicable terms and conditions of this Agreement and will be liable for the acts and omissions of such Clients and Users in connection with Zemanta One Platform provided under this Agreement or for any breach of this Agreement by such Clients or Users; (iii) it will not attempt to interfere with or disrupt the integrity or performance of the Zemanta One Platform or the data contained therein or attempt to gain unauthorized access to the Zemanta One Platform or its related systems or networks, and (iv) it will not directly or indirectly reverse engineer, prepare derivative works of reverse compile or disassemble the Zemanta One Platform or any portion thereof or permit any User or third party to do the same. Customer shall also be solely responsible for maintaining the security of any passwords and/or access codes assigned and shall immediately notify Zemanta if Customer becomes aware of any loss or theft or unauthorized use of any of Customers passwords or user accounts. Zemanta reserves the right, upon notice to Customer, to terminate any User’s rights to access the Zemanta One Platform if such User has violated any of the terms, conditions or restrictions contained in this Agreement.
3. Service Level Objective
(a) Service Level. Zemanta’s service level objective is to make commercially reasonable efforts to provide Service Availability of 99% as measured on a monthly basis (“Service Availability Objective”). “Service Availability” is defined as the time that the Service is capable of receiving, processing, and responding to requests, excluding Scheduled Maintenance and Force Majeure. Service Availability is calculated as a percentage by dividing the number of minutes the Service is available during the applicable month by the number of total minutes in the applicable month, excluding in all cases Scheduled Maintenance and Force Majeure. Zemanta will provide notice of downtime on its platform website http://one.zemanta.com and through registered user accounts.
(b) Remedy for Failure to Achieve Service Zemanta’s Service Level Objective. If either (i) Zemanta fails to achieve the System Availability Objective set forth above for thirty (30) consecutive days in a row or sixty (60) days in any twelve (12) month period or (ii) Zemanta’s Service Availability is less than 50% for ten (10) consecutive days, Customer shall be entitled, as its sole remedy, to terminate this Agreement for convenience upon written notice to Zemanta in which case Customer shall receive a refund of any prepaid, unused fees paid hereunder to Zemanta.
4. Payment
(a) Payment. Customer will pay its Total Spend and all applicable fees (as set forth on the Order Form) and media costs associated with any Third-Party Terms, and any applicable taxes, thirty (30) days from receipt of Zemanta’s invoice. This includes any and all fees incurred by Customer, Customer’s Clients, or Customer’s Users related to the use of the Zemanta One Platform. Payments may be made by ACH, check, wire transfer or other means expressly agreed to in writing by Zemanta. All payments will be made in US Dollars. For the avoidance of doubt Customer shall be billed for Total Spend regardless of any cost-per-click denoted in the Zemanta One Platform.
(b) Late Payment. Customer agrees to pay a late charge of two percent (2%) per month (or part of a month, or the maximum lawful rate permitted by Applicable Law, whichever is less), for all amounts, not subject to a good faith dispute, and not paid within sixty (60) days of being due. Customer shall be solely and exclusively responsible for the payment of required federal, state and local taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Zemanta and any taxes or obligations imposed upon Zemanta under federal, state and local wage laws. Customer will also reimburse Zemanta for all costs and expenses Zemanta incurs in collecting or seeking to collect any late payments that are not disputed in good faith (including court costs and reasonable attorneys’ fees). Zemanta also reserves the right to suspend or terminate Customer's use of the Service until Customer has paid all amounts due and to charge Customer for all costs of collection, including collection agency and reasonable legal fees and court costs. Customer authorizes Zemanta to investigate Customer's credit record. If applicable, Customer agrees to provide such further financial information and documentation as may be required from time to time by Zemanta as a condition for the continued extension of credit. Customer acknowledges and agrees that any account, credit card and related billing and payment information which Customer provides to Zemanta may be shared by Zemanta with companies who work on Zemanta's behalf solely for the purpose of performing credit checks, effecting payment to Zemanta, collecting debts owed to Zemanta and/or servicing Customer's account. Zemanta may, in its sole discretion, extend, revise or revoke credit at any time.
(c) Payment Dispute. If Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the parties, Customer shall pay the amounts due under this Agreement less the disputed amount, and the parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Customer delivers a written statement to Zemanta on or before seven (7) days after invoice has been issued, describing in detail the basis of the dispute and the amount being withheld by Customer, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Customer that are not in dispute have been paid as and when required under this Agreement.
5. Ownership
(a) Customer Ownership. Customer retains ownership of all right, title and interest in and to all Customer Content. During the term of this Agreement, Customer hereby grants to Zemanta a limited, worldwide, non-exclusive, royalty free right to use, display, transmit, and distribute the Customer Content solely as necessary to provide the Services to Customer. Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Content. The accuracy of Customer Content shall be Customer’s sole responsibility.
(b) Zemanta Ownership. Customer acknowledges and agrees that (i) as between Zemanta and Customer, all right, title and interest in and to the Zemanta One Platform, the Services and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain with Zemanta or its licensors, and Zemanta in no way conveys any right or interest in the Zemanta One Platform or the Services other than a limited license to use them in accordance with the terms of this Agreement, and (ii) the Zemanta One Platform and the Services are works protected by copyright, trade secret, and other proprietary rights and laws. As between Customer and Zemanta, Zemanta will also own all data derived from use of the Zemanta One Platform and may use and disclose such data (i) to provide the Services and for internal media planning purposes, (ii) as aggregate Services statistics, which will not include personally identifiable information or identify Customer or its Clients, and (iii) if required by court order, law or governmental or regulatory agency (after giving reasonable notice to Customer, if permitted). Notwithstanding the foregoing, nothing herein shall prohibit Zemanta from using anonymous aggregated data for purposes of system performance and tuning. The Zemanta name, the Zemanta logo, and the product names associated with the Services are trademarks of Zemanta or third parties, and no right or license is granted to use them. Customer shall not remove any Zemanta trademark or logo from the Services. Zemanta retains ownership of all right, title and interest in and to all Zemanta Content. During the term of this Agreement, Zemanta grants to Customer a limited, worldwide, non-exclusive, royalty free right to use, display, transmit, and distribute the Zemanta Content solely in connection with Customer’s permitted use of the Services. No press releases or general public announcements shall be made without the mutual consent of Customer and Zemanta. Zemanta shall have the right to include Customer’s name on Zemanta’s client list and in other marketing materials. Customer shall not use Zemanta’s name, logo or trademark without Zemanta’s prior written consent.
6. Confidentiality
(a) During the term of this Agreement, each party will regard any information provided to it by the other party to be confidential (“Confidential Information”). Confidential Information shall also include information, which to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, Client, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event less than reasonable care be used. The parties expressly agree that the terms and pricing of this Agreement are the Confidential Information of Zemanta. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
(b) Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement, or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of Applicable Law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
Notwithstanding any other provision of this Agreement, both parties acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under Applicable Law.
7. Data Protection/Privacy
The Parties acknowledge and agree that some or all of the data processed pursuant to the Services may qualify, or include, Personal Data. Each party warrants and represents to (i) comply with all applicable Data Protection Laws when Processing Personal Data, and (ii) maintain and display on their respective websites an easily accessible and discoverable privacy policy that complies with the Data Protection Laws. Customer acknowledges and agrees that it is Customer’s responsibility to ensure that its use of the Services complies with all applicable Data Protection Laws, including (i) that Customer has a lawful basis for providing Zemanta with any Personal Data, and (ii) the use of any third party cookies and/or pixels in its campaign(s), and the capturing of any consent to such cookies and/or pixels is in accordance with Data Protection Laws. Each party shall (i) implement appropriate technical and organizational measures to protect any Personal Data from accidental or unlawful destruction and/or loss, alteration, unauthorized disclosure of, or access to the Personal Data (ii) ensure any subcontractors are subject to appropriate obligations in compliance with the Data Protection Laws, and (iii) if transferring Personal Data outside of the European Economic Area it has taken such measures as are necessary to ensure the transfer is in compliance with Data Protection Laws. The Customer shall indemnify, defend and hold harmless Zemanta and its parent and affiliates, and each of its and their respective affiliates, directors, officers, shareholders, members, authorized representatives, employees and agents from and against any and all claims, losses, liabilities, damages, costs, settlements and other expenses (including reasonable attorneys’ fees) that arise out of a breach by the Customer of the provisions of this Section 7.
8. Indemnification
(a) Zemanta Indemnification. Subject to subsection (c) below, Zemanta will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorney’s fees) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any third party against Customer (i) alleging that the use of the Services as permitted hereunder infringes any United States patent, copyright or trademark, or constitutes a misappropriation of a trade secret of a third party, (ii) arising out of Zemanta’s breach of any of its representations, warranties or covenants made in this Agreement or (iii) that is attributable to or otherwise alleges any violation of any Applicable Law by Zemanta, including without limitation, compliance with data privacy and data protection laws. The foregoing obligations will not apply to the extent the claim arises as a result of (a) any use of the Services in a manner other than as specified in this Agreement, (b) any use of the Services in combination with other products, equipment, devices, software, systems or data not supplied by Zemanta to the extent such claim is caused by such combination; (c) any alteration, modification or customization of the Services made by any party other than Zemanta or Zemanta’s authorized representatives if such infringement would not have occurred without such alteration, modification or customization or (d) any services of third parties made available to Customer through its use of the Services. lf Customer’s use of the Services is, or in Zemanta’s opinion is likely to be, enjoined as an infringement or misappropriation of any third-party intellectual property right, Zemanta shall at its discretion and expense: (i) procure for Customer the right to continue to use the Services under the terms of this Agreement; (ii) replace or modify the Services or portions thereof so that it is non-infringing and substantially equivalent in function to the Services as enjoined; or (iii) terminate this Agreement in whole or in part and refund to Customer any prepaid, unused fees paid hereunder for the infringing Services.
(b) Customer Indemnification. Subject to subsection (c) below, Customer will indemnify, defend, and hold Zemanta harmless from and against any and all Losses resulting from any claim, suit, action, or proceeding brought by any third party against Zemanta (i) alleging that any content or materials supplied by Customer or its Clients or any use thereof, infringes the intellectual property rights, proprietary or privacy rights of others, or has caused harm to a third party, (ii) arising out of Customer’s breach any of its representations, warranties or covenants made in this Agreement or (iii) that is attributable to or otherwise alleges any violation of any Applicable Law by Customer, including without limitation, compliance with Data Protection Laws. Customer also agrees to indemnify, defend, and hold Zemanta harmless from and against any and all Losses resulting from any Objectionable Content used or transmitted by Customer or any of its Users in violation of this Agreement.
(c) Indemnification Procedure. With respect to any third party claims or proceedings, the indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement provided that the indemnifying party will not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).
9. Representations and Warranties
(a) Zemanta’s Representation and Warranties. Zemanta represents and warrants that the Services will comply in all material respects with the description of the Services found in this Agreement, the current Documentation or SOW, as the case may be. The foregoing shall not be construed as a warranty that the Services will function without error or interruption. For any breach of the warranty set forth above, both parties’ sole and exclusive remedy, except for termination of this Agreement as described in Section 12, and Zemanta’s entire liability shall be, for Zemanta to use commercially reasonable efforts to correct the defect or error that caused the breach of warranty.
(b) Customer’s Representation and Warranties. Customer represents and warrants to Zemanta that: (i) Customer is a duly organized under the laws of the state in which it is domiciled and Customer has all right and authority to enter into this Agreement; (ii) Customer has all necessary rights, licenses and permission for Customer Content and the Customer Content will not violate any intellectual property right, proprietary rights or rights of privacy of any third party and the Customer Content will not be objectionable as defined in section 2(c) above; (iii) Customer is authorized to take all actions under the terms of this Agreement on behalf of Customer’s Clients; and (iv) Customer will comply with all Data Protection Laws (including complying with all laws related to data collection) and Customer has a privacy policy on its website.
10. ZEMANTA’S DISCLAIMERS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, THE ZEMANTA ONE PLATFORM AND ANY SERVICES PROVIDED BY ZEMANTA IN CONNECTION WITH THIS AGREEMENT, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ZEMANTA EXPRESSLY DISCLAIMS, ON ITS BEHALF AND ON ITS SUPPLIERS BEHALVES, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF ZEMANTA OR ITS SUPPLIERS.
11. LIMITATIONS OF LIABILITY
NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ZEMANTA TO CUSTOMER’S CLIENTS OR USERS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 5 (OWNERSHIP), A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 OR A PARTYS INDEMNIFICATION OBLIGATIONS IN SECTION 8, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER FOR ANY AND ALL DAMAGES AND CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR OWED BY CUSTOMER TO ZEMANTA UNDER THIS AGREEMENT DURING THE SIX MONTH PERIOD THE DATE OF THE ACTION OR CLAIM FOR THE SERVICES.
12. Term and Termination
(a) Term. Subject to earlier termination as described herein, the term of this Agreement shall commence on the Effective Date as defined on the Order Form and shall continue in effect for an initial term as defined on the Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one-year periods each (each, a “Renewal Term”) unless either party elects not to renew the Agreement by providing written notice to the other party no fewer than 60 days prior to the expiration of the then current term.
(b) Termination. Notwithstanding the foregoing, either party may terminate this Agreement (i) immediately in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Z In the event that Customer violates Applicable Law in connection with its use of the Services or otherwise uses or transmits any Objectionable Content in violation of this Agreement Zemanta may suspend Customer’s access to the Services until such time as Customer is no longer in violation of Applicable Law and/or has removed Objectionable Content. Termination of this Agreement pursuant to this Section (b) shall be in addition to any other rights or remedies available to the terminating party at law and in equity. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement (including, without limitation, Sections 6, 7, 8, 11 and 12, and all payment obligations relating to the period prior to termination.
(c) Suspension. Zemanta also reserves the right, in its good faith reasonable discretion, to suspend or otherwise pause any advertising campaign being run through the Services for material non-compliance with supplier terms or in the event that Customer materially breaches any of the terms and conditions of this Agreement or any Third Party Terms, including, without limitation, any failure by customer to make payments in a timely fashion in accordance with Section 4. If an advertising campaign is paused, Zemanta will promptly notify the Customer.
13. General
This Agreement will not be interpreted or construed as creating or evidencing any association, joint venture, partnership, or franchise between the parties. Except as expressly stated herein, the provisions of this Agreement are for the benefit of the parties to this Agreement and not for any other person or entity. Customer may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Zemanta (such consent not to be unreasonably withheld or delayed). Any such assignment will be void and of no force or effect. Zemanta may assign this Agreement without restriction to a purchaser of all or substantially all of Zemanta’s assets, a successor in interest of Zemanta or as part of a corporate reorganization, consolidation or merger. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Any notice under this Agreement will be effective if in writing and sent by email, certified or registered mail, or insured courier, return receipt requested, to a party at its address or email address given below. Each party may update its address or email by notice to the other party in accordance with this Section. Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of New York, USA, without reference to its choice of law rules and not including the provisions of the 1980 US Convention on Contracts for the International Sale of Goods. Each party hereby consents irrevocably to the exclusive jurisdiction and venue of the federal, state, and local courts in New York, New York, in connection with any action arising out of or in connection with this Agreement. Either party’s waiver of any breach of any provision of this Agreement does not waive any other breach. Either party’s failure to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such party’s right to demand strict performance in the future. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. This Agreement may be executed in multiple counterparts with the same effect as if the parties had signed one document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures. This Agreement, including the Order Form, all SOWs and Exhibits hereto and terms and policies referenced in this Agreement constitute the final and complete expression of the agreement between Customer and Zemanta regarding their subject matter. This Agreement supersedes, and its terms govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by Zemanta. No employee, agent, or other representative of Zemanta has any authority to bind Zemanta with respect to any representation, warranty, or other expression unless it is specifically set forth in this Agreement. No employee, agent or other representative of Customer has any authority to bind Customer with respect to any representation, warranty or other expression unless it is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the provisions of this Agreement. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.
Effective January 23, 2019 to January 28, 2020
DownloadTable of Contents
Zemanta One Platform Master Service Agreement
This Zemanta One Platform Master Service Agreement, including the Order Form and any terms set forth in a schedule or Exhibit hereto (collectively, this “Agreement”), dated as of Effective Date on the Order Form is entered into by Zemanta, Inc. (“Zemanta”) and the customer whose details are set forth on the Order Form (“Customer”).
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions
“Advisory Services” means Zemanta will provide support and assistance with Customer’s content advertising campaign set up and management as well as proactive campaign monitoring. Customer will be solely responsible for managing any campaigns including making any setting changes (e.g., including, not limited to bid prices, start and stop dates and times, and spend allocations).
"Agency" or "Managed Service Provider" means the advertising, media or creative agency or other professional services company that will provide services to a Client in order to conduct advertising campaigns on the client's behalf through the Zemanta One Platform.
“Applicable Law” means a law, rule, regulation, declaration, decree, directive, statute, or other enactment, order, mandate or resolution issued or enacted by any government entity (including any domestic or foreign, supranational, national, state, county, municipal, local, territorial or other government), or applicable guidelines or principles issued by any governmental entity.
“Client" means Customer or an advertising client of Customer.
“Content” means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.
"Customer" means the entity contracting with Zemanta in order to use the Zemanta One Platform. If the Customer is an Agency, then Customer may be referred to as Customer or Agency.
“Customer Content” means all Content made available by Customer or its Users to Zemanta for use in connection with the Services or that is otherwise uploaded onto the Zemanta One Platform by or on behalf of Customer or its Users.
“Data Protection Laws” means any applicable Data Protection Laws. It shall include (a) the Data Protection Directive 95/46/EC and ePrivacy Directive 2002/58/EC as implemented by countries within the EEA, (b) the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and/or (c) other Laws that implement the Laws that are identified in (a) and (b) above. The terms "Personal Data”, and “Processing” shall have the same meaning ascribed to them under the GDPR.
“Documentation” user documentation, in any form, provided by Zemanta relating to the Services (e.g., online help files) generally provided by Zemanta to its customers.
“Force Majeure” is defined as acts of God, terrorism, labor action, fire, flood, earthquake, governmental acts, order, or restriction, denial of service attacks and other malicious conduct, utility failures, or any other cause of Service unavailability that was beyond Zemanta’s reasonable control.
"Insertion Order" or "Order Form" are used interchangeably in this document and carry the same meaning for the purposes of this agreement.
“Objectionable Content” means any viruses, malware or malicious code, as well as any Content or links to web sites that contain Content (or further links to content) which could be reasonably construed as illegal, unethical, defamatory, obscene, hateful, libelous, or that otherwise could be reasonably determined to reflect negatively, in a material way, upon Zemanta’s reputation or that of Zemanta’s customers, or that infringes upon the rights of any third party.
"Platform Credits" means the amount of credit that Zemanta will provide to the Customer through Customer’s account on the Zemanta One Platform. Platform Credits are used to fund campaign budgets created and managed by the Customer on the Zemanta One Platform. Campaign budgets are used to buy media programmatically via the Zemanta One Platform.
“Platform Services” means the hosted software-as-a-service offering made available by Zemanta to Customer via the Zemanta One Platform in accordance with the then-current Documentation, as more fully described in Exhibit A.
“Professional Services” means the additional services (if any) that may be provided by Zemanta personnel on behalf of Customer pursuant to a separate Statement of Work (“SOW”).
“Seat” means a written contractual relationship with a supplier (e.g., Outbrain, Appnexus, Google AdExchange, etc.) governing the terms of ad inventory supply and purchase from such supplier, including a direct billing relationship between the Seat holder and supplier.
“Services” means, where applicable, the Advisory Services, Professional Services, and Zemanta One Platform services.
“Scheduled Maintenance” is defined as any maintenance performed during Zemanta’s standard maintenance windows and any other maintenance of which Customer is given at least forty-eight (48) hours advance notice. Zemanta may perform maintenance on some or all of the Zemanta One Platform in order to upgrade hardware or software that operate or supports the Zemanta One Platform, implement security measure, or address any other issues it deems appropriate for the continued operation of the Zemanta One Platform.
“Third Party Terms” means the terms and conditions for use of services from third parties made available to Customer through the Zemanta One Platform, as described in Exhibit B.
"Total Spend" means the sum of all spend recorded in the Zemanta Platform inclusive of media spend, data costs and platform fees.
“User” means an employee, agent or contractor of Customer or its Client who has been authorized by Customer to use the Services on behalf of Customer and its Clients.
“Zemanta Content” means all Content made available by Zemanta to Customer in connection with Customer’s use of the Services or that is otherwise uploaded onto the Zemanta One Platform by Zemanta on behalf of Customer or its Users.
“Zemanta One Platform” means Zemanta’s proprietary dashboard used to buy online media, and flight and manage campaign(s).
2. Services
(a) License. Subject to the terms and conditions of this Agreement (including the timely payment of all applicable fees), Zemanta hereby grants Customer and its Users a non-exclusive, non-transferable, right and limited license to access and use the Services during the term of this Agreement solely for use on behalf of Customer and its Clients. Customer will ensure that Customer and its Users comply with the terms and conditions of this Agreement, all Applicable Law and Data Protection Laws, and the Third-Party Terms set forth on Exhibit B hereto, as applicable. As between Customer and Zemanta, Customer shall be solely responsible for ensuring that its use of the Services complies with all self-regulatory best practice standards including, but not limited to the IAB Code of Conduct, Network Advertising Initiatives (NAI) Self-Regulatory Principles, the NAI Web Beacon Guidelines and the FTC Self-Regulatory Principles for Online Behavioral Advertising.
(b) Equipment. Customer is responsible for procuring and maintaining the equipment and network connections necessary to remotely connect to the Services. Customer shall not attempt to access any other of Zemanta’s systems, programs or data that are not made available for Customers use in connection with the Services.
(c) Customer Responsibility/Restrictions. Customer is solely responsible for (i) all activities conducted under its logins (including its Users’ logins) within the Zemanta One Platform and for its Users' compliance with this Agreement; (ii) protecting its login and password to the Zemanta One Platform and (iii) and any requests or changes made by Customer (or its Users’) within the Zemanta One Platform. If Customer is utilizing Zemanta’s automation feature within the Zemanta One Platform, Customer grants Zemanta the right to set and modify Customer’s bidding at Zemanta’s discretion to aid in achieving Customer’s goals for its campaign(s). If Customer requests Zemanta to make changes to its campaign(s) on Customer’s behalf, all such requested changes must conveyed previously in writing.
Unauthorized use, resale or commercial exploitation of the Zemanta One Platform in any way is expressly prohibited. Customer represents and warrants (i) it will not upload to or otherwise authorize or permit any Objectionable Content to run through the Zemanta One Platform and that any ads or data being authorized or permitted by Customer to run through the Zemanta One Platform will be free of viruses and malicious code (ii) it is authorized to act on behalf of each of its Clients, will ensure that such Clients and all Users comply with the applicable terms and conditions of this Agreement and will be liable for the acts and omissions of such Clients and Users in connection with Zemanta One Platform provided under this Agreement or for any breach of this Agreement by such Clients or Users; (iii) it will not attempt to interfere with or disrupt the integrity or performance of the Zemanta One Platform or the data contained therein or attempt to gain unauthorized access to the Zemanta One Platform or its related systems or networks, and (iv) it will not directly or indirectly reverse engineer, prepare derivative works of reverse compile or disassemble the Zemanta One Platform or any portion thereof or permit any User or third party to do the same. Customer shall also be solely responsible for maintaining the security of any passwords and/or access codes assigned and shall immediately notify Zemanta if Customer becomes aware of any loss or theft or unauthorized use of any of Customers passwords or user accounts. Zemanta reserves the right, upon notice to Customer, to terminate any User’s rights to access the Zemanta One Platform if such User has violated any of the terms, conditions or restrictions contained in this Agreement.
3. Service Level Objective
(a) Service Level. Zemanta’s service level objective is to make commercially reasonable efforts to provide Service Availability of 99% as measured on a monthly basis (“Service Availability Objective”). “Service Availability” is defined as the time that the Service is capable of receiving, processing, and responding to requests, excluding Scheduled Maintenance and Force Majeure. Service Availability is calculated as a percentage by dividing the number of minutes the Service is available during the applicable month by the number of total minutes in the applicable month, excluding in all cases Scheduled Maintenance and Force Majeure. Zemanta will provide notice of downtime on its platform website http://one.zemanta.com and through registered user accounts.
(b) Remedy for Failure to Achieve Service Zemanta’s Service Level Objective. If either (i) Zemanta fails to achieve the System Availability Objective set forth above for thirty (30) consecutive days in a row or sixty (60) days in any twelve (12) month period or (ii) Zemanta’s Service Availability is less than 50% for ten (10) consecutive days, Customer shall be entitled, as its sole remedy, to terminate this Agreement for convenience upon written notice to Zemanta in which case Customer shall receive a refund of any prepaid, unused fees paid hereunder to Zemanta.
4. Payment
(a) Payment. Customer will pay its Total Spend and all applicable fees (as set forth on the Order Form) and media costs associated with any Third-Party Terms, and any applicable taxes, thirty (30) days from receipt of Zemanta’s invoice. This includes any and all fees incurred by Customer, Customer’s Clients, or Customer’s Users related to the use of the Zemanta One Platform. Payments may be made by ACH, check, wire transfer or other means expressly agreed to in writing by Zemanta. All payments will be made in US Dollars. For the avoidance of doubt Customer shall be billed for Total Spend regardless of any cost-per-click denoted in the Zemanta One Platform.
(b) Late Payment. Customer agrees to pay a late charge of two percent (2%) per month (or part of a month, or the maximum lawful rate permitted by Applicable Law, whichever is less), for all amounts, not subject to a good faith dispute, and not paid within sixty (60) days of being due. Customer shall be solely and exclusively responsible for the payment of required federal, state and local taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Zemanta and any taxes or obligations imposed upon Zemanta under federal, state and local wage laws. Customer will also reimburse Zemanta for all costs and expenses Zemanta incurs in collecting or seeking to collect any late payments that are not disputed in good faith (including court costs and reasonable attorneys’ fees).
(c) Payment Dispute. If Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the parties, Customer shall pay the amounts due under this Agreement less the disputed amount, and the parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Customer delivers a written statement to Zemanta on or before seven (7) days after invoice has been issued, describing in detail the basis of the dispute and the amount being withheld by Customer, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Customer that are not in dispute have been paid as and when required under this Agreement.
5. Ownership
(a) Customer Ownership. Customer retains ownership of all right, title and interest in and to all Customer Content. During the term of this Agreement, Customer hereby grants to Zemanta a limited, worldwide, non-exclusive, royalty free right to use, display, transmit, and distribute the Customer Content solely as necessary to provide the Services to Customer. Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Content. The accuracy of Customer Content shall be Customer’s sole responsibility.
(b) Zemanta Ownership. Customer acknowledges and agrees that (i) as between Zemanta and Customer, all right, title and interest in and to the Zemanta One Platform, the Services and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain with Zemanta or its licensors, and Zemanta in no way conveys any right or interest in the Zemanta One Platform or the Services other than a limited license to use them in accordance with the terms of this Agreement, and (ii) the Zemanta One Platform and the Services are works protected by copyright, trade secret, and other proprietary rights and laws. As between Customer and Zemanta, Zemanta will also own all data derived from use of the Zemanta One Platform and may use and disclose such data (i) to provide the Services and for internal media planning purposes, (ii) as aggregate Services statistics, which will not include personally identifiable information or identify Customer or its Clients, and (iii) if required by court order, law or governmental or regulatory agency (after giving reasonable notice to Customer, if permitted). Notwithstanding the foregoing, nothing herein shall prohibit Zemanta from using anonymous aggregated data for purposes of system performance and tuning. The Zemanta name, the Zemanta logo, and the product names associated with the Services are trademarks of Zemanta or third parties, and no right or license is granted to use them. Customer shall not remove any Zemanta trademark or logo from the Services. Zemanta retains ownership of all right, title and interest in and to all Zemanta Content. During the term of this Agreement, Zemanta grants to Customer a limited, worldwide, non-exclusive, royalty free right to use, display, transmit, and distribute the Zemanta Content solely in connection with Customer’s permitted use of the Services. No press releases or general public announcements shall be made without the mutual consent of Customer and Zemanta. Zemanta shall have the right to include Customer’s name on Zemanta’s client list and in other marketing materials. Customer shall not use Zemanta’s name, logo or trademark without Zemanta’s prior written consent.
6. Confidentiality
(a) During the term of this Agreement, each party will regard any information provided to it by the other party to be confidential (“Confidential Information”). Confidential Information shall also include information, which to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, Client, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event less than reasonable care be used. The parties expressly agree that the terms and pricing of this Agreement are the Confidential Information of Zemanta. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
(b) Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement, or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of Applicable Law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
Notwithstanding any other provision of this Agreement, both parties acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under Applicable Law.
7. Data Protection/Privacy
The Parties acknowledge and agree that some or all of the data processed pursuant to the Services may qualify, or include, Personal Data. Each party warrants and represents to (i) comply with all applicable Data Protection Laws when Processing Personal Data, and (ii) maintain and display on their respective websites an easily accessible and discoverable privacy policy that complies with the Data Protection Laws. Customer acknowledges and agrees that it is Customer’s responsibility to ensure that its use of the Services complies with all applicable Data Protection Laws, including (i) that Customer has a lawful basis for providing Zemanta with any Personal Data, and (ii) the use of any third party cookies and/or pixels in its campaign(s), and the capturing of any consent to such cookies and/or pixels is in accordance with Data Protection Laws. Each party shall (i) implement appropriate technical and organizational measures to protect any Personal Data from accidental or unlawful destruction and/or loss, alteration, unauthorized disclosure of, or access to the Personal Data (ii) ensure any subcontractors are subject to appropriate obligations in compliance with the Data Protection Laws, and (iii) if transferring Personal Data outside of the European Economic Area it has taken such measures as are necessary to ensure the transfer is in compliance with Data Protection Laws. The Customer shall indemnify, defend and hold harmless Zemanta and its parent and affiliates, and each of its and their respective affiliates, directors, officers, shareholders, members, authorized representatives, employees and agents from and against any and all claims, losses, liabilities, damages, costs, settlements and other expenses (including reasonable attorneys’ fees) that arise out of a breach by the Customer of the provisions of this Section 7.
8. Indemnification
(a) Zemanta Indemnification. Subject to subsection (c) below, Zemanta will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorney’s fees) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any third party against Customer (i) alleging that the use of the Services as permitted hereunder infringes any United States patent, copyright or trademark, or constitutes a misappropriation of a trade secret of a third party, (ii) arising out of Zemanta’s breach of any of its representations, warranties or covenants made in this Agreement or (iii) that is attributable to or otherwise alleges any violation of any Applicable Law by Zemanta, including without limitation, compliance with data privacy and data protection laws. The foregoing obligations will not apply to the extent the claim arises as a result of (a) any use of the Services in a manner other than as specified in this Agreement, (b) any use of the Services in combination with other products, equipment, devices, software, systems or data not supplied by Zemanta to the extent such claim is caused by such combination; (c) any alteration, modification or customization of the Services made by any party other than Zemanta or Zemanta’s authorized representatives if such infringement would not have occurred without such alteration, modification or customization or (d) any services of third parties made available to Customer through its use of the Services. lf Customer’s use of the Services is, or in Zemanta’s opinion is likely to be, enjoined as an infringement or misappropriation of any third-party intellectual property right, Zemanta shall at its discretion and expense: (i) procure for Customer the right to continue to use the Services under the terms of this Agreement; (ii) replace or modify the Services or portions thereof so that it is non-infringing and substantially equivalent in function to the Services as enjoined; or (iii) terminate this Agreement in whole or in part and refund to Customer any prepaid, unused fees paid hereunder for the infringing Services.
(b) Customer Indemnification. Subject to subsection (c) below, Customer will indemnify, defend, and hold Zemanta harmless from and against any and all Losses resulting from any claim, suit, action, or proceeding brought by any third party against Zemanta (i) alleging that any content or materials supplied by Customer or its Clients or any use thereof, infringes the intellectual property rights, proprietary or privacy rights of others, or has caused harm to a third party, (ii) arising out of Customer’s breach any of its representations, warranties or covenants made in this Agreement or (iii) that is attributable to or otherwise alleges any violation of any Applicable Law by Customer, including without limitation, compliance with Data Protection Laws. Customer also agrees to indemnify, defend, and hold Zemanta harmless from and against any and all Losses resulting from any Objectionable Content used or transmitted by Customer or any of its Users in violation of this Agreement.
(c) Indemnification Procedure. With respect to any third party claims or proceedings, the indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement provided that the indemnifying party will not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).
9. Representations and Warranties
(a) Zemanta’s Representation and Warranties. Zemanta represents and warrants that the Services will comply in all material respects with the description of the Services found in this Agreement, the current Documentation or SOW, as the case may be. The foregoing shall not be construed as a warranty that the Services will function without error or interruption. For any breach of the warranty set forth above, both parties’ sole and exclusive remedy, except for termination of this Agreement as described in Section 12, and Zemanta’s entire liability shall be, for Zemanta to use commercially reasonable efforts to correct the defect or error that caused the breach of warranty.
(b) Customer’s Representation and Warranties. Customer represents and warrants to Zemanta that: (i) Customer is a duly organized under the laws of the state in which it is domiciled and Customer has all right and authority to enter into this Agreement; (ii) Customer has all necessary rights, licenses and permission for Customer Content and the Customer Content will not violate any intellectual property right, proprietary rights or rights of privacy of any third party and the Customer Content will not be objectionable as defined in section 2(c) above; (iii) Customer is authorized to take all actions under the terms of this Agreement on behalf of Customer’s Clients; and (iv) Customer will comply with all Data Protection Laws (including complying with all laws related to data collection) and Customer has a privacy policy on its website.
10. ZEMANTA’S DISCLAIMERS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, THE ZEMANTA ONE PLATFORM AND ANY SERVICES PROVIDED BY ZEMANTA IN CONNECTION WITH THIS AGREEMENT, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ZEMANTA EXPRESSLY DISCLAIMS, ON ITS BEHALF AND ON ITS SUPPLIERS BEHALVES, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF ZEMANTA OR ITS SUPPLIERS.
11. LIMITATIONS OF LIABILITY
NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ZEMANTA TO CUSTOMER’S CLIENTS OR USERS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 5 (OWNERSHIP), A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 OR A PARTYS INDEMNIFICATION OBLIGATIONS IN SECTION 8, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER FOR ANY AND ALL DAMAGES AND CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR OWED BY CUSTOMER TO ZEMANTA UNDER THIS AGREEMENT DURING THE SIX MONTH PERIOD THE DATE OF THE ACTION OR CLAIM FOR THE SERVICES.
12. Term and Termination
(a) Term. Subject to earlier termination as described herein, the term of this Agreement shall commence on the Effective Date as defined on the Order Form and shall continue in effect for an initial term as defined on the Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one-year periods each (each, a “Renewal Term”) unless either party elects not to renew the Agreement by providing written notice to the other party no fewer than 60 days prior to the expiration of the then current term.
(b) Termination. Notwithstanding the foregoing, either party may terminate this Agreement (i) immediately in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Z In the event that Customer violates Applicable Law in connection with its use of the Services or otherwise uses or transmits any Objectionable Content in violation of this Agreement Zemanta may suspend Customer’s access to the Services until such time as Customer is no longer in violation of Applicable Law and/or has removed Objectionable Content. Termination of this Agreement pursuant to this Section (b) shall be in addition to any other rights or remedies available to the terminating party at law and in equity. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement (including, without limitation, Sections 6, 7, 8, 11 and 12, and all payment obligations relating to the period prior to termination.
(c) Suspension. Zemanta also reserves the right, in its good faith reasonable discretion, to suspend or otherwise pause any advertising campaign being run through the Services for material non-compliance with supplier terms or in the event that Customer materially breaches any of the terms and conditions of this Agreement or any Third Party Terms, including, without limitation, any failure by customer to make payments in a timely fashion in accordance with Section 4. If an advertising campaign is paused, Zemanta will promptly notify the Customer.
13. General
This Agreement will not be interpreted or construed as creating or evidencing any association, joint venture, partnership, or franchise between the parties. Except as expressly stated herein, the provisions of this Agreement are for the benefit of the parties to this Agreement and not for any other person or entity. Customer may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Zemanta (such consent not to be unreasonably withheld or delayed). Any such assignment will be void and of no force or effect. Zemanta may assign this Agreement without restriction to a purchaser of all or substantially all of Zemanta’s assets, a successor in interest of Zemanta or as part of a corporate reorganization, consolidation or merger. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Any notice under this Agreement will be effective if in writing and sent by email, certified or registered mail, or insured courier, return receipt requested, to a party at its address or email address given below. Each party may update its address or email by notice to the other party in accordance with this Section. Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of New York, USA, without reference to its choice of law rules and not including the provisions of the 1980 US Convention on Contracts for the International Sale of Goods. Each party hereby consents irrevocably to the exclusive jurisdiction and venue of the federal, state, and local courts in New York, New York, in connection with any action arising out of or in connection with this Agreement. Either party’s waiver of any breach of any provision of this Agreement does not waive any other breach. Either party’s failure to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such party’s right to demand strict performance in the future. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. This Agreement may be executed in multiple counterparts with the same effect as if the parties had signed one document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures. This Agreement, including the Order Form, all SOWs and Exhibits hereto and terms and policies referenced in this Agreement constitute the final and complete expression of the agreement between Customer and Zemanta regarding their subject matter. This Agreement supersedes, and its terms govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by Zemanta. No employee, agent, or other representative of Zemanta has any authority to bind Zemanta with respect to any representation, warranty, or other expression unless it is specifically set forth in this Agreement. No employee, agent or other representative of Customer has any authority to bind Customer with respect to any representation, warranty or other expression unless it is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the provisions of this Agreement. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.
Zemanta One MSA Exhibits
Effective January 24, 2019
DownloadTable of Contents
Zemanta One Platform Exhibits
EXHIBIT A — PLATFORM SERVICES
The Platform Services provided under the context of this Agreement allow Customer to remotely access and use the Zemanta One Platform. The Zemanta One Platform is an automated system for buying online media, through real time and non-real time buys. Customer will have the ability to access the Zemanta One Platform through its User Interface, to create advertising campaigns, assign budgets and campaigns goals, select media and targeting parameters, assign them to content ads to be shown to consumers, and review reports on campaign performance. Zemanta makes no claims as to the ability to add additional services, features or capabilities and offers the Zemanta One Platform as-is.
Capabilities:
- DSP Services
- Access to multiple native ad exchanges, networks and supply side platforms
- Access to text, image and video content ad inventory
- Access to Zemanta One Platform standard DSP buying capabilities
- Ability to use Zemanta One Platform to execute campaigns in the US, Canada, Europe and Australia
- Ability to upload, manage and review content via the Zemanta One Platform Content Management System
- Media optimization: Bid determination by source and content, Budget allocation by source and content
- Graphical user interface that allows campaigns to be setup and access to campaign reporting
- Aggregated billing for media purchased using Seats held by Zemanta
Advisory Services
- Customer will traffic content ads, trade and manage campaigns; and Zemanta will provide support and assistance with campaign setup and management as well as periodic campaign monitoring. Zemanta will assign an account support specialist as the single point of contact for the Customer. Customer will be solely responsible for making any campaign setting changes.
Zemanta Responsibility:
Customer will be provided up to 8 hours of Advisory Services per month providing services in the following areas:
- RFP and Pre-Sales Support [for agency customers]
- Regularly scheduled update calls with account support specialist to discuss campaign setup and strategy
- Campaign setup and strategy
- QA campaign setup prior to launch
- Monitor campaign performance and pacing
- Providing optimization tips & recommendations
- Providing web-based training
Customer Responsibility:
- Campaign setup, launch and management
- Monitor campaign reporting and discuss optimization recommendations
- Implement optimizations and changes as needed
- Attend regularly scheduled update calls with Zemanta account support specialist
- Identify Users and Primary campaign manager for Customer
Features and services in addition to those specified above may be made available from time to time and are subject to additional charges. Additional fees may also apply relating to Customer contracted exchange seat and data provider integrations as well as maintenance.
EXHIBIT B — THIRD PARTY TERMS
Zemanta Seats
If Customer uses one or more of Zemanta Seats, then Customer shall pay Zemanta for all inventory purchased through each such Seat. Zemanta will submit a monthly consolidated invoice for all such activity.
Customer will be issued a credit limit (it being acknowledged that Customer’s initial credit limit will be stated on the Order Form). To determine the credit limit the Customer will be required to provide such information as vendor references, bank references, financial statements (audited if available) and other related information as necessary. The credit limit will represent the Customer’s maximum allowable outstanding accounts receivable balance owed to Zemanta. The Customer will be approved to purchase media using Zemanta Seats and incur Platform Fees (as per cover page, herein) up to the stated credit limit through the use of the Zemanta One Platform. In the event that the Customer has reached the stated credit limit and wishes to incur additional Platform Fees or purchase media, the Customer will need to submit a Request for Emergency Credit Form (Form) to Zemanta finance for approval. The Form will include campaign details and the reason for being over the limit and approval of this request will be in Zemanta sole discretion. Zemanta has the right, but not the obligation to review advertising campaigns running on the Zemanta One Platform to ensure compliance with the terms and conditions of this Agreement and with Zemanta Supplier Terms and reserves the right, acting reasonably and in good faith, to pause an advertising campaign in the event of an issue relating to creative non-compliance with this Agreement or improper use of the Zemanta One Platform. If a campaign is paused, Zemanta will promptly notify the Customer.
3rd Party Data (“3PD”)
Customer may choose to license third party data (“3PD”) through Zemanta to be deployed on its campaigns managed through the Zemanta One Platform. Zemanta will provide Customer final pricing, tracking, and monthly billing for the use of 3PD. Customer will be liable for the additional cost of 3PD whether it is purchased through Zemanta or directly by the Customer.
Customer agrees to be bound by all terms and conditions applicable to the 3PD and releases Zemanta from all liability with respect to the use of 3PD. Zemanta makes no representations or warranties concerning the 3PD or the use of the 3PD and disclaims all warranties relating thereto including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability or fitness for a particular purpose. Zemanta represents however that it will not utilize any provider that does not represent and warrant that its data (i) does not violate any Applicable Law, rules or regulations; and (ii) does not infringe on title or misappropriate the intellectual property rights of any third party.
Other Third Party Services
Customer may choose to use other third-party services in connection with its use of the Platform Services (“TPS”). Examples of TPS include viewability tracking, consumer research, semantic analysis, etc.). Zemanta will provide Customer final pricing, tracking, and monthly billing for the use of TPS. Customer will be liable for the additional cost of the TPS whether it is purchased through Zemanta or directly by the Customer.
Customer agrees to be bound by all terms and conditions applicable to the TPS and Customer releases Zemanta from all liability with respect to the use of TPS. Zemanta makes no representations or warranties concerning the use of TPS and disclaims all warranties relating thereto including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability or fitness for a particular purpose. Zemanta represents however that it will not utilize any third-party service provider that does not represent and warrant that its services (i) does not violate any Applicable Law, rules or regulations, and (ii) does not infringe on title or misappropriate the intellectual property rights of any third party.
Effective January 23, 2019 to January 24, 2019
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Zemanta One Platform Exhibits
EXHIBIT A — PLATFORM SERVICES
The Platform Services provided under the context of this Agreement allow Customer to remotely access and use the Zemanta One Platform. The Zemanta One Platform is an automated system for buying online media, through real time and non-real time buys. Customer will have the ability to access the Zemanta One Platform through its User Interface, to create advertising campaigns, assign budgets and campaigns goals, select media and targeting parameters, assign them to content ads to be shown to consumers, and review reports on campaign performance. Zemanta makes no claims as to the ability to add additional services, features or capabilities and offers the Zemanta One Platform as-is.
Capabilities:
- DSP Services
- Access to multiple native ad exchanges, networks and supply side platforms
- Access to text, image and video content ad inventory
- Access to Zemanta One Platform standard DSP buying capabilities
- Ability to use Zemanta One Platform to execute campaigns in the US, Canada, Europe and Australia
- Ability to upload, manage and review content via the Zemanta One Platform Content Management System
- Media optimization: Bid determination by source and content, Budget allocation by source and content
- Graphical user interface that allows campaigns to be setup and access to campaign reporting
- Aggregated billing for media purchased using Seats held by Zemanta
Advisory Services
- Customer will traffic content ads, trade and manage campaigns; and Zemanta will provide support and assistance with campaign setup and management as well as periodic campaign monitoring. Zemanta will assign an account support specialist as the single point of contact for the Customer. Customer will be solely responsible for making any campaign setting changes.
Zemanta Responsibility:
Customer will be provided up to 8 hours of Advisory Services per month providing services in the following areas:
- RFP and Pre-Sales Support [for agency customers]
- Regularly scheduled update calls with account support specialist to discuss campaign setup and strategy
- Campaign setup and strategy
- QA campaign setup prior to launch
- Monitor campaign performance and pacing
- Providing optimization tips & recommendations
- Providing web-based training
Customer Responsibility:
- Campaign setup, launch and management
- Monitor campaign reporting and discuss optimization recommendations
- Implement optimizations and changes as needed
- Attend regularly scheduled update calls with Zemanta account support specialist
- Identify Users and Primary campaign manager for Customer
Features and services in addition to those specified above may be made available from time to time and are subject to additional charges. Additional fees may also apply relating to Customer contracted exchange seat and data provider integrations as well as maintenance.
EXHIBIT B — THIRD PARTY TERMS
Zemanta Seats
If Customer uses one or more of Zemanta Seats, then Customer shall pay Zemanta for all inventory purchased through each such Seat. Zemanta will submit a monthly consolidated invoice for all such activity.
Customer will be issued a credit limit (it being acknowledged that Customer’s initial credit limit will be stated on the Order Form). To determine the credit limit the Customer will be required to provide such information as vendor references, bank references, financial statements (audited if available) and other related information as necessary. The credit limit will represent the Customer’s maximum allowable outstanding accounts receivable balance owed to Zemanta. The Customer will be approved to purchase media using Zemanta Seats and incur Platform Fees (as per cover page, herein) up to the stated credit limit through the use of the Zemanta One Platform. In the event that the Customer has reached the stated credit limit and wishes to incur additional Platform Fees or purchase media, the Customer will need to submit a Request for Emergency Credit Form (Form) to Zemanta finance for approval. The Form will include campaign details and the reason for being over the limit and approval of this request will be in Zemanta sole discretion. Zemanta has the right, but not the obligation to review advertising campaigns running on the Zemanta One Platform to ensure compliance with the terms and conditions of this Agreement and with Zemanta Supplier Terms and reserves the right, acting reasonably and in good faith, to pause an advertising campaign in the event of an issue relating to creative non-compliance with this Agreement or improper use of the Zemanta One Platform. If a campaign is paused, Zemanta will promptly notify the Customer.
3rd Party Data (“3PD”)
Customer may choose to license third party data (“3PD”) through Zemanta to be deployed on its campaigns managed through the Zemanta One Platform. Zemanta will provide Customer final pricing, tracking, and monthly billing for the use of 3PD. Customer will be liable for the additional cost of 3PD whether it is purchased through Zemanta or directly by the Customer.
Customer agrees to be bound by all terms and conditions applicable to the 3PD and releases Zemanta from all liability with respect to the use of 3PD. Zemanta makes no representations or warranties concerning the 3PD or the use of the 3PD and disclaims all warranties relating thereto including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability or fitness for a particular purpose. Zemanta represents however that it will not utilize any provider that does not represent and warrant that its data (i) does not violate any Applicable Law, rules or regulations; and (ii) does not infringe on title or misappropriate the intellectual property rights of any third party.
Other Third Party Services
Customer may choose to use other third-party services in connection with its use of the Platform Services (“TPS”). Examples of TPS include viewability tracking, consumer research, semantic analysis, etc.). Zemanta will provide Customer final pricing, tracking, and monthly billing for the use of TPS. Customer will be liable for the additional cost of the TPS whether it is purchased through Zemanta or directly by the Customer.
Customer agrees to be bound by all terms and conditions applicable to the TPS and Customer releases Zemanta from all liability with respect to the use of TPS. Zemanta makes no representations or warranties concerning the use of TPS and disclaims all warranties relating thereto including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability or fitness for a particular purpose. Zemanta represents however that it will not utilize any third-party service provider that does not represent and warrant that its services (i) does not violate any Applicable Law, rules or regulations, and (ii) does not infringe on title or misappropriate the intellectual property rights of any third party.
Zemanta Supply Side Platform Agreement
Effective March 5, 2020
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ZEMANTA SUPPLY SIDE PLATFORM AGREEMENT
1. SSP’s Services.
1.1 SSP’s Services. SSP will provide the following services to Zemanta (collectively the “Services”): (a) SSP will customize and implement an online advertising exchange (the “Exchange”) that performs in accordance with the functional specifications, which Exchange shall allow Zemanta to purchase impression inventory delivered by the Exchange (“Deliverables”) in near real time by bidding on the impression inventory; (b) SSP will host the Exchange; (c) SSP will provide maintenance services for the Exchange; and (d) its Services and, as necessary SSP will provide customization and support services, including reasonable education and support, during normal business hours, to Zemanta.
1.2 License Grant. Subject to the terms of this Agreement, SSP hereby grants Zemanta a non-exclusive, non-transferable right to access and use the Services. Zemanta agrees that it will not: (a) resell, license, lease, time-share, distribute or otherwise transfer to any third party its right to access and use the Services, (b) reverse engineer, decompile or dissemble the Services, (c) modify, copy or create derivative works of Services (or any part thereof), or (d) access or use Services for the purpose of building a competitive product or service or copying its features or user interface or authorize or permit a direct competitor to do so.
1.3 SSP’s Ownership. SSP retains all right, title and interest in and to the Services and Exchange, including all intellectual property rights thereto.
1.4 Acceptance. The Exchange shall conform to the OpenRTB Native 2.3 (or higher) standard and Functional Specifications (as defined on the Order Form). Within ten (10) business days from the time SSP delivers the Exchange to Zemanta, Zemanta will review, test (including in respect of functionality, performance and usability) and either approve or reject the Exchange. Zemanta will provide all reasons for any rejection, suggesting modifications as appropriate, on an iterative basis, and SSP will correct and re-deliver the Exchange until it is in a form acceptable to Zemanta. In the event that the Exchange does not meet Zemanta’s final reasonable approval at least one (1) day prior to the launch date, either party may (without incurring any liability) terminate this Agreement upon written notice to the other party.
2. Zemanta’s Client’s Advertising Materials. SSP acknowledges and agrees that it does not have any rights or title to any of the intellectual property rights contained in Zemanta’s clients’ advertising materials, except for the right to display the Zemanta’s clients’ advertisements on the websites in accordance with this Agreement and SSP agrees that it will not use the advertising materials for any other purpose. Further, SSP may not alter the advertising materials in any way.
3. Payment.
3.1 Payment Terms. Zemanta will pay SSP in accordance with this Agreement and as set forth on the Order Form. All payments are in US dollars. All payments under this Agreement will be in accordance to SSP’s measurements. The payable event is a successfully sent win notice that communicates the exact cost incurred by a specific bid that Zemanta has submitted and won. Zemanta will pay SSP within sixty (60) days of the end of each calendar month. If there is any disagreement with respect to any discrepancies related to the payment to SSP hereunder, the parties agree to work in good faith to resolve the dispute. If the parties are unable to resolve the dispute within thirty (30) days from the date of notification of the dispute, then Zemanta and SSP agree to submit the dispute to binding arbitration with a single arbitrator and each party shall bear their own attorneys’ fees but share the cost of the arbitrator.
3.2 Payment Liability. Unless otherwise set forth elsewhere, SSP agrees to hold Zemanta liable for payments solely to the extent proceeds have cleared from client to Zemanta for Fees incurred by bidding. For sums not cleared to Zemanta, SSP agrees to hold client solely liable. Zemanta agrees to make every reasonable effort to collect and clear payment from client(s) on a timely basis. Zemanta’s credit is established on a client-by-client basis. Upon request, Zemanta will make available to SSP written confirmation of the relationship between Zemanta and client. This confirmation should include, for example, client’s acknowledgement that Zemanta is its agent and is authorized to act on its behalf in connection with the specific Work Order and these Terms. In addition, upon the request of SSP, Zemanta will confirm whether client has paid to Zemanta in advance funds sufficient to make payments pursuant to the Work Order. If Zemanta’s or client’s credit is or becomes impaired, SSP may require payment in advance.
3.3 Taxes. For purposes of this Agreement, “Taxes” shall mean all federal, state, local, foreign and other net income, gross income, gross receipts, sales, purchase, use, ad valorem, value added, goods and services, harmonized sales, transfer, franchise, profits, withholding, payroll, excise, stamp, real or personal property, customs, duties or other taxes, fees, levies, assessments or charges of any kind whatsoever, including any related penalties and interest, imposed by any federal, territorial, state, local, or foreign government or any agency or political subdivision of any such government. Zemanta is solely responsible for the payment of all Taxes associated with its use of the Services and SSP is solely responsible for the payment of all Taxes associated with any payments made by Zemanta to SSP under the terms of this Agreement.
3.4 Fraudulent Activity. Each party agrees that it will not, and will not authorize or encourage any third party to, directly or indirectly generate impressions, click-throughs, conversions, cloaked inventory, and/or other actions with respect to the Services or Exchange through any automated, deceptive, fraudulent, or otherwise invalid means, including through repeated manual clicks, the use of “robots,” or other automated tools, or rendering or placing ads in a way to achieve excessive amount of accidental click-throughs (“Fraudulent Activity”) . If Zemanta suspects Fraudulent Activity, then Zemanta shall notify SSP via email that it suspects Fraudulent Activity and Zemanta, in its sole discretion, may withhold payment to SSP. Zemanta and SSP agree to work in good faith to resolve any dispute regarding Fraudulent Activity. If the parties are unable to resolve the dispute within thirty (30) days from the date of notification of the dispute, then Zemanta and SSP agree to submit the dispute to binding arbitration with a single arbitrator and each party shall bear their own attorneys’ fees but share the cost of the arbitrator.
3.5 Prohibited Placements. SSP shall not place and will not allow to place ads from Zemanta in any context that would not conform to Federal Trade Commission industry guidelines for native advertising. SSP shall not place ads and it will not allow to place ads from Zemanta by injecting them into third party web pages or apps through browser extensions, injection proxies or other similar mechanisms.
4. Term/Termination.
4.1 Term. The term of this Agreement shall begin on the Effective Date and continue in full force & effect unless terminated earlier as provided hereunder or as otherwise specified on an order form.
4.2 Termination. Either party may terminate this Agreement for convenience at any time by providing thirty (30) calendar days’ prior written notice. In addition, either Party may terminate this Agreement if the other party breaches this Agreement; provided that (a) the non-breaching Party provides the breaching Party written notice of such breach and (b) the breaching party fails to cures such breach within thirty (30) days of such notice.
4.3 Effect of Termination. Upon termination of this Agreement, Zemanta’s access to the Services shall cease and SSP shall not be under any further obligation to provide the Services under the terms of this Agreement. Zemanta shall pay SSP any fees owed to SSP within sixty (60) days from the date of termination. Sections 1-3, 4.3 and 6-9 and 11 shall survive the termination of this Agreement. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all Confidential Information of the other party.
5. Data Use / Protection.
5.1 Zemanta and SSP will each own the interaction data that it collects from the Services and the Exchange. SSP may not use or disclose any of the interaction data gathered by or on behalf of Zemanta except that SSP shall have the right to use the Zemanta Data for the sole purpose of providing the Services.
5.2 SSP and Zemanta shall each maintain and display on their respective websites an easily accessible and discoverable privacy notice and/or policy that complies with all applicable laws. The parties are independent controllers and businesses in respect of user data processed by either party and each party remains individually responsible for compliance with relevant data protection laws, SSP warrants that, to the extent end user consent is received using the IAB methodology (and/or any other industry standard), it shall pass Zemanta a clear consent or no consent signal (i.e. the SSP must not send Zemanta a null or invalid signal). If an end user has opted out of behavioural advertising via the SSP, the SSP must not pass Zemanta such end user's advertiser ID or other identifying mechanism.
6. SSP’s Representations and Warranties.
6.1 SSP represents and warrants that:
1. SSP is an entity duly organized, validly existing and in good standing under the laws of its state of domicile (as listed on the Order Form);
2. SSP (i) has the full right and authority to enter into and perform this Agreement; (ii) the execution, consent or acknowledgment of no other party is necessary in order to validate SSP’s entry into and performance of this Agreement; (iii) SSP’s entry into and performance of this Agreement does not violate any agreement binding on SSP; and (iv) this Agreement is a legal, valid, binding and enforceable obligation of SSP;
3. Nothing in the Services or Exchange infringes any intellectual property (copyright, author’s rights, trademark, etc.), personal right (right of privacy, right of publicity, defamation, etc.) or other proprietary right of any person nor do the Services or Exchange violate any local, state or federal law of the United States or any applicable international jurisdiction;
4. SSP will use commercially reasonable efforts to provide the Services according to the terms of this Agreement; and
5. SSP has all necessary rights and permissions to grant licenses in the Services to Zemanta.
6.2 No party to this Agreement has made any representations or warranties to the other except as expressly set forth in this Agreement.
7. SSP’s Warranty Disclaimer. SSP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET ZEMANTA’S REQUIREMENTS. THE SERVICE IS PROVIDED “AS IS”.
8. Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY RECEIVED BY SSP FOR THE APPLICABLE SERVICE UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.
9. Indemnification.
9.1 SSP hereby agrees to defend, indemnify and hold harmless Zemanta, its advertising clients, and their respective officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of: (i) any breach (or, as to defense obligations only, alleged breach) by SSP of any term, condition, representation or warranty under this Agreement; (ii) the websites used by SSP in providing the Services and the Exchange; (iii) Zemanta’s use of the Services or Exchange; (iv) the infringement of the Exchange or the Services, or on the intellectual property right of a third party.
9.2 Zemanta hereby agrees to defend, indemnify and hold harmless SSP and its officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of Zemanta’s gross negligence, willful misconduct or fraudulent actions.
9.3 Any claim for indemnification hereunder shall be subject to the following provisions: (i) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that it diligently undertakes such defense and that no settlement admitting liability on the part of the indemnified party or limiting the indemnified party’s rights hereunder may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
10. Maintenance and Upgrades.
10.1 Updates, Upgrades. SSP shall provide Zemanta, without any further charge to Zemanta, all updates (comprising general bug fixes and minor enhancements) and upgrades (comprising enhancements and major functionality changes) for the Services or Exchange reflecting improvements made to the underlying technology upon the implementation of such updates and upgrades to the Services or Exchange.
10.2 Maintenance. SSP may occasionally be required to suspend the Services or Exchange in order to provide maintenance services. SSP shall provide Zemanta with no less than ten (10) business days advanced written notice of any such suspension.
11. General Provisions.
11.1 Confidentiality. Both parties agree that they will hold in strictest confidence and will not use or disclose to any third party, any confidential information disclosed by the other party. For purposes of this Agreement, “confidential information” shall mean all non-public information that a party designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential. “Confidential Information” includes, without limitation, the terms and conditions of this Agreement, information relating to released or unreleased Zemanta technology (software and hardware products), marketing or promotion materials related to Zemanta’s technology, products or services or customers or suppliers of Zemanta and SSP’s Services. “Confidential Information” shall not include information that was known to either party prior to the disclosure by the other party, information that becomes publicly available through no fault of any party or information that was independently developed by either party.
11.2 Notices. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and personally delivered, sent by United States registered or certified mail, or internationally-recognized courier service such as Federal Express, duly addressed to the parties as set forth on the Order Form. Delivery of any notice shall be deemed made on the date of its actual delivery if personally delivered, and on the date indicated in the return receipt or courier’s records as the date of its delivery or first attempt at delivery if sent by mail or courier. Any party may change its address or telecopy number for notice purposes by giving notice to the other party.
11.3 Severability. If any provision of this Agreement or its application to any party or circumstance is held invalid or unenforceable, then the remainder of this Agreement and the affected provision to the extent it is not held shall remain valid and enforceable and in full force and effect.
11.4 No Partnership. This Agreement shall not be construed as creating a partnership or joint venture between Zemanta or SSP or between either of them and any third party or cause either of them to be responsible in any manner for the other’s or any third party’s debts or obligations, including to any employees.
11.5 No Waiver. A waiver by either party of a default by the other party or of any right hereunder shall be effective only if it is in a writing signed by the waiving party and shall not be construed as a waiver of any other default or right, whether similar or dissimilar.
11.6 Transfer. Neither party may sell, assign, or otherwise transfer, or attempt to sell, assign or otherwise transfer, all or any portion of its rights or obligations under or otherwise in connection with this Agreement without the prior written consent of the other; provided, however, the foregoing prohibition shall not apply to any sale of all or substantially all of one party’s assets or any merger or reorganization to which consent of the other Party is not required.
11.7 Counterparts. This Agreement may be executed in counterparts, all of which shall constitute one instrument. Facsimile copies and electronic copies of this Agreement are acceptable as original copies.
11.8 Governing Law and Jurisdiction. This Agreement will be governed by and construed under applicable federal law and the laws of the State of New York, excluding any conflict of law provisions. Zemanta and SSP irrevocably consent to the exclusive jurisdiction of any New York state or federal court sitting in the Southern District of New York, over any suit, action or proceeding arising out of or relating to this Agreement.
11.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Zemanta and SSP and their permitted successors and assigns.
11.10 Survival. Rights and obligations under this Agreement, which by their nature should survive, will remain in effect after the termination or expiration of this Agreement.
11.11 Entire Agreement; Amendments. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein and all prior or contemporaneous agreements or understandings, oral or written, pertaining to any such matters are merged herein and shall not be effective for any purpose. No provision of this Agreement may be amended or added to except by an agreement in writing, which is signed by the parties hereto or their respective permitted successors-in-interest and indicates that it is an amendment of this Agreement.
Effective March 5, 2020 to March 5, 2020
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ZEMANTA SUPPLY SIDE PLATFORM AGREEMENT
1. SSP’s Services.
1.1 SSP’s Services. SSP will provide the following services to Zemanta (collectively the “Services”): (a) SSP will customize and implement an online advertising exchange (the “Exchange”) that performs in accordance with the functional specifications, which Exchange shall allow Zemanta to purchase impression inventory delivered by the Exchange (“Deliverables”) in near real time by bidding on the impression inventory; (b) SSP will host the Exchange; (c) SSP will provide maintenance services for the Exchange; and (d) its Services and, as necessary SSP will provide customization and support services, including reasonable education and support, during normal business hours, to Zemanta.
1.2 License Grant. Subject to the terms of this Agreement, SSP hereby grants Zemanta a non-exclusive, non-transferable right to access and use the Services. Zemanta agrees that it will not: (a) resell, license, lease, time-share, distribute or otherwise transfer to any third party its right to access and use the Services, (b) reverse engineer, decompile or dissemble the Services, (c) modify, copy or create derivative works of Services (or any part thereof), or (d) access or use Services for the purpose of building a competitive product or service or copying its features or user interface or authorize or permit a direct competitor to do so.
1.3 SSP’s Ownership. SSP retains all right, title and interest in and to the Services and Exchange, including all intellectual property rights thereto.
1.4 Acceptance. The Exchange shall conform to the OpenRTB Native 2.3 (or higher) standard and Functional Specifications (as defined on the Cover Page). Within ten (10) business days from the time SSP delivers the Exchange to Zemanta, Zemanta will review, test (including in respect of functionality, performance and usability) and either approve or reject the Exchange. Zemanta will provide all reasons for any rejection, suggesting modifications as appropriate, on an iterative basis, and SSP will correct and re-deliver the Exchange until it is in a form acceptable to Zemanta. In the event that the Exchange does not meet Zemanta’s final reasonable approval at least one (1) day prior to the launch date, either party may (without incurring any liability) terminate this Agreement upon written notice to the other party.
2. Zemanta’s Client’s Advertising Materials. SSP acknowledges and agrees that it does not have any rights or title to any of the intellectual property rights contained in Zemanta’s clients’ advertising materials, except for the right to display the Zemanta’s clients’ advertisements on the websites in accordance with this Agreement and SSP agrees that it will not use the advertising materials for any other purpose. Further, SSP may not alter the advertising materials in any way.
3. Payment.
3.1 Payment Terms. Zemanta will pay SSP in accordance with this Agreement and as set forth on the Cover Page. All payments are in US dollars. All payments under this Agreement will be in accordance to SSP’s measurements. The payable event is a successfully sent win notice that communicates the exact cost incurred by a specific bid that Zemanta has submitted and won. Zemanta will pay SSP within sixty (60) days of the end of each calendar month. If there is any disagreement with respect to any discrepancies related to the payment to SSP hereunder, the parties agree to work in good faith to resolve the dispute. If the parties are unable to resolve the dispute within thirty (30) days from the date of notification of the dispute, then Zemanta and SSP agree to submit the dispute to binding arbitration with a single arbitrator and each party shall bear their own attorneys’ fees but share the cost of the arbitrator.
3.2 Payment Liability. Unless otherwise set forth elsewhere, SSP agrees to hold Zemanta liable for payments solely to the extent proceeds have cleared from client to Zemanta for Fees incurred by bidding. For sums not cleared to Zemanta, SSP agrees to hold client solely liable. Zemanta agrees to make every reasonable effort to collect and clear payment from client(s) on a timely basis. Zemanta’s credit is established on a client-by-client basis. Upon request, Zemanta will make available to SSP written confirmation of the relationship between Zemanta and client. This confirmation should include, for example, client’s acknowledgement that Zemanta is its agent and is authorized to act on its behalf in connection with the specific Work Order and these Terms. In addition, upon the request of SSP, Zemanta will confirm whether client has paid to Zemanta in advance funds sufficient to make payments pursuant to the Work Order. If Zemanta’s or client’s credit is or becomes impaired, SSP may require payment in advance.
3.3 Taxes. For purposes of this Agreement, “Taxes” shall mean all federal, state, local, foreign and other net income, gross income, gross receipts, sales, purchase, use, ad valorem, value added, goods and services, harmonized sales, transfer, franchise, profits, withholding, payroll, excise, stamp, real or personal property, customs, duties or other taxes, fees, levies, assessments or charges of any kind whatsoever, including any related penalties and interest, imposed by any federal, territorial, state, local, or foreign government or any agency or political subdivision of any such government. Zemanta is solely responsible for the payment of all Taxes associated with its use of the Services and SSP is solely responsible for the payment of all Taxes associated with any payments made by Zemanta to SSP under the terms of this Agreement.
3.4 Fraudulent Activity. Each party agrees that it will not, and will not authorize or encourage any third party to, directly or indirectly generate impressions, click-throughs, conversions, cloaked inventory, and/or other actions with respect to the Services or Exchange through any automated, deceptive, fraudulent, or otherwise invalid means, including through repeated manual clicks, the use of “robots,” or other automated tools, or rendering or placing ads in a way to achieve excessive amount of accidental click-throughs (“Fraudulent Activity”) . If Zemanta suspects Fraudulent Activity, then Zemanta shall notify SSP via email that it suspects Fraudulent Activity and Zemanta, in its sole discretion, may withhold payment to SSP. Zemanta and SSP agree to work in good faith to resolve any dispute regarding Fraudulent Activity. If the parties are unable to resolve the dispute within thirty (30) days from the date of notification of the dispute, then Zemanta and SSP agree to submit the dispute to binding arbitration with a single arbitrator and each party shall bear their own attorneys’ fees but share the cost of the arbitrator.
3.5 Prohibited Placements. SSP shall not place and will not allow to place ads from Zemanta in any context that would not conform to Federal Trade Commission industry guidelines for native advertising. SSP shall not place ads and it will not allow to place ads from Zemanta by injecting them into third party web pages or apps through browser extensions, injection proxies or other similar mechanisms.
4. Term/Termination.
4.1 Term. The term of this Agreement shall begin on the Effective Date and continue in full force & effect unless terminated earlier as provided hereunder or as otherwise specified on an order form.
4.2 Termination. Either party may terminate this Agreement for convenience at any time by providing thirty (30) calendar days’ prior written notice. In addition, either Party may terminate this Agreement if the other party breaches this Agreement; provided that (a) the non-breaching Party provides the breaching Party written notice of such breach and (b) the breaching party fails to cures such breach within thirty (30) days of such notice.
4.3 Effect of Termination. Upon termination of this Agreement, Zemanta’s access to the Services shall cease and SSP shall not be under any further obligation to provide the Services under the terms of this Agreement. Zemanta shall pay SSP any fees owed to SSP within sixty (60) days from the date of termination. Sections 1-3, 4.3 and 6-9 and 11 shall survive the termination of this Agreement. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all Confidential Information of the other party.
5. Data Use / Protection.
5.1 Zemanta and SSP will each own the interaction data that it collects from the Services and the Exchange. SSP may not use or disclose any of the interaction data gathered by or on behalf of Zemanta except that SSP shall have the right to use the Zemanta Data for the sole purpose of providing the Services.
5.2 SSP and Zemanta shall each maintain and display on their respective websites an easily accessible and discoverable privacy notice and/or policy that complies with all applicable laws. The parties are independent controllers and businesses in respect of user data processed by either party and each party remains individually responsible for compliance with relevant data protection laws, SSP warrants that, to the extent end user consent is received using the IAB methodology (and/or any other industry standard), it shall pass Zemanta a clear consent or no consent signal (i.e. the SSP must not send Zemanta a null or invalid signal). If an end user has opted out of behavioural advertising via the SSP, the SSP must not pass Zemanta such end user's advertiser ID or other identifying mechanism.
6. SSP’s Representations and Warranties.
6.1 SSP represents and warrants that:
1. SSP is an entity duly organized, validly existing and in good standing under the laws of its state of domicile (as listed on the Cover Page);
2. SSP (i) has the full right and authority to enter into and perform this Agreement; (ii) the execution, consent or acknowledgment of no other party is necessary in order to validate SSP’s entry into and performance of this Agreement; (iii) SSP’s entry into and performance of this Agreement does not violate any agreement binding on SSP; and (iv) this Agreement is a legal, valid, binding and enforceable obligation of SSP;
3. Nothing in the Services or Exchange infringes any intellectual property (copyright, author’s rights, trademark, etc.), personal right (right of privacy, right of publicity, defamation, etc.) or other proprietary right of any person nor do the Services or Exchange violate any local, state or federal law of the United States or any applicable international jurisdiction;
4. SSP will use commercially reasonable efforts to provide the Services according to the terms of this Agreement; and
5. SSP has all necessary rights and permissions to grant licenses in the Services to Zemanta.
6.2 No party to this Agreement has made any representations or warranties to the other except as expressly set forth in this Agreement.
7. SSP’s Warranty Disclaimer. SSP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET ZEMANTA’S REQUIREMENTS. THE SERVICE IS PROVIDED “AS IS”.
8. Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY RECEIVED BY SSP FOR THE APPLICABLE SERVICE UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.
9. Indemnification.
9.1 SSP hereby agrees to defend, indemnify and hold harmless Zemanta, its advertising clients, and their respective officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of: (i) any breach (or, as to defense obligations only, alleged breach) by SSP of any term, condition, representation or warranty under this Agreement; (ii) the websites used by SSP in providing the Services and the Exchange; (iii) Zemanta’s use of the Services or Exchange; (iv) the infringement of the Exchange or the Services, or on the intellectual property right of a third party.
9.2 Zemanta hereby agrees to defend, indemnify and hold harmless SSP and its officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of Zemanta’s gross negligence, willful misconduct or fraudulent actions.
9.3 Any claim for indemnification hereunder shall be subject to the following provisions: (i) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that it diligently undertakes such defense and that no settlement admitting liability on the part of the indemnified party or limiting the indemnified party’s rights hereunder may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
10. Maintenance and Upgrades.
10.1 Updates, Upgrades. SSP shall provide Zemanta, without any further charge to Zemanta, all updates (comprising general bug fixes and minor enhancements) and upgrades (comprising enhancements and major functionality changes) for the Services or Exchange reflecting improvements made to the underlying technology upon the implementation of such updates and upgrades to the Services or Exchange.
10.2 Maintenance. SSP may occasionally be required to suspend the Services or Exchange in order to provide maintenance services. SSP shall provide Zemanta with no less than ten (10) business days advanced written notice of any such suspension.
11. General Provisions.
11.1 Confidentiality. Both parties agree that they will hold in strictest confidence and will not use or disclose to any third party, any confidential information disclosed by the other party. For purposes of this Agreement, “confidential information” shall mean all non-public information that a party designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential. “Confidential Information” includes, without limitation, the terms and conditions of this Agreement, information relating to released or unreleased Zemanta technology (software and hardware products), marketing or promotion materials related to Zemanta’s technology, products or services or customers or suppliers of Zemanta and SSP’s Services. “Confidential Information” shall not include information that was known to either party prior to the disclosure by the other party, information that becomes publicly available through no fault of any party or information that was independently developed by either party.
11.2 Notices. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and personally delivered, sent by United States registered or certified mail, or internationally-recognized courier service such as Federal Express, duly addressed to the parties as set forth on the Cover Page. Delivery of any notice shall be deemed made on the date of its actual delivery if personally delivered, and on the date indicated in the return receipt or courier’s records as the date of its delivery or first attempt at delivery if sent by mail or courier. Any party may change its address or telecopy number for notice purposes by giving notice to the other party.
11.3 Severability. If any provision of this Agreement or its application to any party or circumstance is held invalid or unenforceable, then the remainder of this Agreement and the affected provision to the extent it is not held shall remain valid and enforceable and in full force and effect.
11.4 No Partnership. This Agreement shall not be construed as creating a partnership or joint venture between Zemanta or SSP or between either of them and any third party or cause either of them to be responsible in any manner for the other’s or any third party’s debts or obligations, including to any employees.
11.5 No Waiver. A waiver by either party of a default by the other party or of any right hereunder shall be effective only if it is in a writing signed by the waiving party and shall not be construed as a waiver of any other default or right, whether similar or dissimilar.
11.6 Transfer. Neither party may sell, assign, or otherwise transfer, or attempt to sell, assign or otherwise transfer, all or any portion of its rights or obligations under or otherwise in connection with this Agreement without the prior written consent of the other; provided, however, the foregoing prohibition shall not apply to any sale of all or substantially all of one party’s assets or any merger or reorganization to which consent of the other Party is not required.
11.7 Counterparts. This Agreement may be executed in counterparts, all of which shall constitute one instrument. Facsimile copies and electronic copies of this Agreement are acceptable as original copies.
11.8 Governing Law and Jurisdiction. This Agreement will be governed by and construed under applicable federal law and the laws of the State of New York, excluding any conflict of law provisions. Zemanta and SSP irrevocably consent to the exclusive jurisdiction of any New York state or federal court sitting in the Southern District of New York, over any suit, action or proceeding arising out of or relating to this Agreement.
11.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Zemanta and SSP and their permitted successors and assigns.
11.10 Survival. Rights and obligations under this Agreement, which by their nature should survive, will remain in effect after the termination or expiration of this Agreement.
11.11 Entire Agreement; Amendments. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein and all prior or contemporaneous agreements or understandings, oral or written, pertaining to any such matters are merged herein and shall not be effective for any purpose. No provision of this Agreement may be amended or added to except by an agreement in writing, which is signed by the parties hereto or their respective permitted successors-in-interest and indicates that it is an amendment of this Agreement.
Effective September 20, 2019 to March 5, 2020
DownloadTable of Contents
ZEMANTA SUPPLY SIDE PLATFORM AGREEMENT
1. SSP’s Services.
1.1 SSP’s Services. SSP will provide the following services to Zemanta (collectively the “Services”): (a) SSP will customize and implement an online advertising exchange (the “Exchange”) that performs in accordance with the functional specifications, which Exchange shall allow Zemanta to purchase impression inventory delivered by the Exchange (“Deliverables”) in near real time by bidding on the impression inventory; (b) SSP will host the Exchange; (c) SSP will provide maintenance services for the Exchange; and (d) its Services and, as necessary SSP will provide customization and support services, including reasonable education and support, during normal business hours, to Zemanta.
1.2 License Grant. Subject to the terms of this Agreement, SSP hereby grants Zemanta a non-exclusive, non-transferable right to access and use the Services. Zemanta agrees that it will not: (a) resell, license, lease, time-share, distribute or otherwise transfer to any third party its right to access and use the Services, (b) reverse engineer, decompile or dissemble the Services, (c) modify, copy or create derivative works of Services (or any part thereof), or (d) access or use Services for the purpose of building a competitive product or service or copying its features or user interface or authorize or permit a direct competitor to do so.
1.3 SSP’s Ownership. SSP retains all right, title and interest in and to the Services and Exchange, including all intellectual property rights thereto.
1.4 Acceptance. The Exchange shall conform to the OpenRTB Native 2.3 (or higher) standard and Functional Specifications (as defined on the Cover Page). Within ten (10) business days from the time SSP delivers the Exchange to Zemanta, Zemanta will review, test (including in respect of functionality, performance and usability) and either approve or reject the Exchange. Zemanta will provide all reasons for any rejection, suggesting modifications as appropriate, on an iterative basis, and SSP will correct and re-deliver the Exchange until it is in a form acceptable to Zemanta. In the event that the Exchange does not meet Zemanta’s final reasonable approval at least one (1) day prior to the launch date, either party may (without incurring any liability) terminate this Agreement upon written notice to the other party.
2. Zemanta’s Client’s Advertising Materials. SSP acknowledges and agrees that it does not have any rights or title to any of the intellectual property rights contained in Zemanta’s clients’ advertising materials, except for the right to display the Zemanta’s clients’ advertisements on the websites in accordance with this Agreement and SSP agrees that it will not use the advertising materials for any other purpose. Further, SSP may not alter the advertising materials in any way.
3. Payment.
3.1 Payment Terms. Zemanta will pay SSP in accordance with this Agreement and as set forth on the Cover Page. All payments are in US dollars. All payments under this Agreement will be in accordance to SSP’s measurements. The payable event is a successfully sent win notice that communicates the exact cost incurred by a specific bid that Zemanta has submitted and won. Zemanta will pay SSP within sixty (60) days of the end of each calendar month. If there is any disagreement with respect to any discrepancies related to the payment to SSP hereunder, the parties agree to work in good faith to resolve the dispute. If the parties are unable to resolve the dispute within thirty (30) days from the date of notification of the dispute, then Zemanta and SSP agree to submit the dispute to binding arbitration with a single arbitrator and each party shall bear their own attorneys’ fees but share the cost of the arbitrator.
3.2 Payment Liability. Unless otherwise set forth elsewhere, SSP agrees to hold Zemanta liable for payments solely to the extent proceeds have cleared from client to Zemanta for Fees incurred by bidding. For sums not cleared to Zemanta, SSP agrees to hold client solely liable. Zemanta agrees to make every reasonable effort to collect and clear payment from client(s) on a timely basis. Zemanta’s credit is established on a client-by-client basis. Upon request, Zemanta will make available to SSP written confirmation of the relationship between Zemanta and client. This confirmation should include, for example, client’s acknowledgement that Zemanta is its agent and is authorized to act on its behalf in connection with the specific Work Order and these Terms. In addition, upon the request of SSP, Zemanta will confirm whether client has paid to Zemanta in advance funds sufficient to make payments pursuant to the Work Order. If Zemanta’s or client’s credit is or becomes impaired, SSP may require payment in advance.
3.3 Taxes. For purposes of this Agreement, “Taxes” shall mean all federal, state, local, foreign and other net income, gross income, gross receipts, sales, purchase, use, ad valorem, value added, goods and services, harmonized sales, transfer, franchise, profits, withholding, payroll, excise, stamp, real or personal property, customs, duties or other taxes, fees, levies, assessments or charges of any kind whatsoever, including any related penalties and interest, imposed by any federal, territorial, state, local, or foreign government or any agency or political subdivision of any such government. Zemanta is solely responsible for the payment of all Taxes associated with its use of the Services and SSP is solely responsible for the payment of all Taxes associated with any payments made by Zemanta to SSP under the terms of this Agreement.
3.4 Fraudulent Activity. Each party agrees that it will not, and will not authorize or encourage any third party to, directly or indirectly generate impressions, click-throughs, conversions, cloaked inventory, and/or other actions with respect to the Services or Exchange through any automated, deceptive, fraudulent, or otherwise invalid means, including through repeated manual clicks, the use of “robots,” or other automated tools, or rendering or placing ads in a way to achieve excessive amount of accidental click-throughs (“Fraudulent Activity”) . If Zemanta suspects Fraudulent Activity, then Zemanta shall notify SSP via email that it suspects Fraudulent Activity and Zemanta, in its sole discretion, may withhold payment to SSP. Zemanta and SSP agree to work in good faith to resolve any dispute regarding Fraudulent Activity. If the parties are unable to resolve the dispute within thirty (30) days from the date of notification of the dispute, then Zemanta and SSP agree to submit the dispute to binding arbitration with a single arbitrator and each party shall bear their own attorneys’ fees but share the cost of the arbitrator.
3.5 Prohibited Placements. SSP shall not place and will not allow to place ads from Zemanta in any context that would not conform to Federal Trade Commission industry guidelines for native advertising. SSP shall not place ads and it will not allow to place ads from Zemanta by injecting them into third party web pages or apps through browser extensions, injection proxies or other similar mechanisms.
4. Term/Termination.
4.1 Term. The term of this Agreement shall begin on the Effective Date and continue in full force & effect unless terminated earlier as provided hereunder or as otherwise specified on an order form.
4.2 Termination. Either party may terminate this Agreement for convenience at any time by providing thirty (30) calendar days’ prior written notice. In addition, either Party may terminate this Agreement if the other party breaches this Agreement; provided that (a) the non-breaching Party provides the breaching Party written notice of such breach and (b) the breaching party fails to cures such breach within thirty (30) days of such notice.
4.3 Effect of Termination. Upon termination of this Agreement, Zemanta’s access to the Services shall cease and SSP shall not be under any further obligation to provide the Services under the terms of this Agreement. Zemanta shall pay SSP any fees owed to SSP within sixty (60) days from the date of termination. Sections 1-3, 4.3 and 6-9 and 11 shall survive the termination of this Agreement. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all Confidential Information of the other party.
5. Data Use.
Zemanta and SSP will each own the interaction data that it collects from the Services and the Exchange. SSP may not use or disclose any of the interaction data gathered by or on behalf of Zemanta except that SSP shall have the right to use the Zemanta Data for the sole purpose of providing the Services.
6. SSP’s Representations and Warranties.
6.1 SSP represents and warrants that:
1. SSP is an entity duly organized, validly existing and in good standing under the laws of its state of domicile (as listed on the Cover Page);
2. SSP (i) has the full right and authority to enter into and perform this Agreement; (ii) the execution, consent or acknowledgment of no other party is necessary in order to validate SSP’s entry into and performance of this Agreement; (iii) SSP’s entry into and performance of this Agreement does not violate any agreement binding on SSP; and (iv) this Agreement is a legal, valid, binding and enforceable obligation of SSP;
3. Nothing in the Services or Exchange infringes any intellectual property (copyright, author’s rights, trademark, etc.), personal right (right of privacy, right of publicity, defamation, etc.) or other proprietary right of any person nor do the Services or Exchange violate any local, state or federal law of the United States or any applicable international jurisdiction;
4. SSP will use commercially reasonable efforts to provide the Services according to the terms of this Agreement; and
5. SSP has all necessary rights and permissions to grant licenses in the Services to Zemanta.
6.2 No party to this Agreement has made any representations or warranties to the other except as expressly set forth in this Agreement.
7. SSP’s Warranty Disclaimer. SSP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET ZEMANTA’S REQUIREMENTS. THE SERVICE IS PROVIDED “AS IS”.
8. Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY RECEIVED BY SSP FOR THE APPLICABLE SERVICE UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.
9. Indemnification.
9.1 SSP hereby agrees to defend, indemnify and hold harmless Zemanta, its advertising clients, and their respective officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of: (i) any breach (or, as to defense obligations only, alleged breach) by SSP of any term, condition, representation or warranty under this Agreement; (ii) the websites used by SSP in providing the Services and the Exchange; (iii) Zemanta’s use of the Services or Exchange; (iv) the infringement of the Exchange or the Services, or on the intellectual property right of a third party.
9.2 Zemanta hereby agrees to defend, indemnify and hold harmless SSP and its officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of Zemanta’s gross negligence, willful misconduct or fraudulent actions.
9.3 Any claim for indemnification hereunder shall be subject to the following provisions: (i) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that it diligently undertakes such defense and that no settlement admitting liability on the part of the indemnified party or limiting the indemnified party’s rights hereunder may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
10. Maintenance and Upgrades.
10.1 Updates, Upgrades. SSP shall provide Zemanta, without any further charge to Zemanta, all updates (comprising general bug fixes and minor enhancements) and upgrades (comprising enhancements and major functionality changes) for the Services or Exchange reflecting improvements made to the underlying technology upon the implementation of such updates and upgrades to the Services or Exchange.
10.2 Maintenance. SSP may occasionally be required to suspend the Services or Exchange in order to provide maintenance services. SSP shall provide Zemanta with no less than ten (10) business days advanced written notice of any such suspension.
11. General Provisions.
11.1 Confidentiality. Both parties agree that they will hold in strictest confidence and will not use or disclose to any third party, any confidential information disclosed by the other party. For purposes of this Agreement, “confidential information” shall mean all non-public information that a party designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential. “Confidential Information” includes, without limitation, the terms and conditions of this Agreement, information relating to released or unreleased Zemanta technology (software and hardware products), marketing or promotion materials related to Zemanta’s technology, products or services or customers or suppliers of Zemanta and SSP’s Services. “Confidential Information” shall not include information that was known to either party prior to the disclosure by the other party, information that becomes publicly available through no fault of any party or information that was independently developed by either party.
11.2 Notices. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and personally delivered, sent by United States registered or certified mail, or internationally-recognized courier service such as Federal Express, duly addressed to the parties as set forth on the Cover Page. Delivery of any notice shall be deemed made on the date of its actual delivery if personally delivered, and on the date indicated in the return receipt or courier’s records as the date of its delivery or first attempt at delivery if sent by mail or courier. Any party may change its address or telecopy number for notice purposes by giving notice to the other party.
11.3 Severability. If any provision of this Agreement or its application to any party or circumstance is held invalid or unenforceable, then the remainder of this Agreement and the affected provision to the extent it is not held shall remain valid and enforceable and in full force and effect.
11.4 No Partnership. This Agreement shall not be construed as creating a partnership or joint venture between Zemanta or SSP or between either of them and any third party or cause either of them to be responsible in any manner for the other’s or any third party’s debts or obligations, including to any employees.
11.5 No Waiver. A waiver by either party of a default by the other party or of any right hereunder shall be effective only if it is in a writing signed by the waiving party and shall not be construed as a waiver of any other default or right, whether similar or dissimilar.
11.6 Transfer. Neither party may sell, assign, or otherwise transfer, or attempt to sell, assign or otherwise transfer, all or any portion of its rights or obligations under or otherwise in connection with this Agreement without the prior written consent of the other; provided, however, the foregoing prohibition shall not apply to any sale of all or substantially all of one party’s assets or any merger or reorganization to which consent of the other Party is not required.
11.7 Counterparts. This Agreement may be executed in counterparts, all of which shall constitute one instrument. Facsimile copies and electronic copies of this Agreement are acceptable as original copies.
11.8 Governing Law and Jurisdiction. This Agreement will be governed by and construed under applicable federal law and the laws of the State of New York, excluding any conflict of law provisions. Zemanta and SSP irrevocably consent to the exclusive jurisdiction of any New York state or federal court sitting in the Southern District of New York, over any suit, action or proceeding arising out of or relating to this Agreement.
11.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Zemanta and SSP and their permitted successors and assigns.
11.10 Survival. Rights and obligations under this Agreement, which by their nature should survive, will remain in effect after the termination or expiration of this Agreement.
11.11 Entire Agreement; Amendments. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein and all prior or contemporaneous agreements or understandings, oral or written, pertaining to any such matters are merged herein and shall not be effective for any purpose. No provision of this Agreement may be amended or added to except by an agreement in writing, which is signed by the parties hereto or their respective permitted successors-in-interest and indicates that it is an amendment of this Agreement.
Effective January 24, 2019 to September 20, 2019
DownloadTable of Contents
ZEMANTA SUPPLY SIDE PLATFORM AGREEMENT
1. SSP’s Services.
1.1 SSP’s Services. SSP will provide the following services to Zemanta (collectively the “Services”): (a) SSP will customize and implement an online advertising exchange (the “Exchange”) that performs in accordance with the functional specifications, which Exchange shall allow Zemanta to purchase impression inventory delivered by the Exchange (“Deliverables”) in near real time by bidding on the impression inventory; (b) SSP will host the Exchange; (c) SSP will provide maintenance services for the Exchange; and (d) its Services and, as necessary SSP will provide customization and support services, including reasonable education and support, during normal business hours, to Zemanta.
1.2 License Grant. Subject to the terms of this Agreement, SSP hereby grants Zemanta a non-exclusive, non-transferable right to access and use the Services. Zemanta agrees that it will not: (a) resell, license, lease, time-share, distribute or otherwise transfer to any third party its right to access and use the Services, (b) reverse engineer, decompile or dissemble the Services, (c) modify, copy or create derivative works of Services (or any part thereof), or (d) access or use Services for the purpose of building a competitive product or service or copying its features or user interface or authorize or permit a direct competitor to do so.
1.3 SSP’s Ownership. SSP retains all right, title and interest in and to the Services and Exchange, including all intellectual property rights thereto.
1.4 Acceptance. The Exchange shall conform to the OpenRTB Native 2.3 (or higher) standard and Functional Specifications (as defined on the Cover Page). Within ten (10) business days from the time SSP delivers the Exchange to Zemanta, Zemanta will review, test (including in respect of functionality, performance and usability) and either approve or reject the Exchange. Zemanta will provide all reasons for any rejection, suggesting modifications as appropriate, on an iterative basis, and SSP will correct and re-deliver the Exchange until it is in a form acceptable to Zemanta. In the event that the Exchange does not meet Zemanta’s final reasonable approval at least one (1) day prior to the launch date, either party may (without incurring any liability) terminate this Agreement upon written notice to the other party.
2. Zemanta’s Client’s Advertising Materials. SSP acknowledges and agrees that it does not have any rights or title to any of the intellectual property rights contained in Zemanta’s clients’ advertising materials, except for the right to display the Zemanta’s clients’ advertisements on the websites in accordance with this Agreement and SSP agrees that it will not use the advertising materials for any other purpose. Further, SSP may not alter the advertising materials in any way.
3. Payment.
3.1 Payment Terms. Zemanta will pay SSP in accordance with this Agreement and as set forth on the Cover Page. All payments are in US dollars. All payments under this Agreement will be in accordance to SSP’s measurements. The payable event is a successfully sent win notice that communicates the exact cost incurred by a specific bid that Zemanta has submitted and won. Zemanta will pay SSP within sixty (60) days of the end of each calendar month. If there is any disagreement with respect to any discrepancies related to the payment to SSP hereunder, the parties agree to work in good faith to resolve the dispute. If the parties are unable to resolve the dispute within thirty (30) days from the date of notification of the dispute, then Zemanta and SSP agree to submit the dispute to binding arbitration with a single arbitrator and each party shall bear their own attorneys’ fees but share the cost of the arbitrator.
3.2 Payment Liability. Unless otherwise set forth elsewhere, SSP agrees to hold Zemanta liable for payments solely to the extent proceeds have cleared from client to Zemanta for Fees incurred by bidding. For sums not cleared to Zemanta, SSP agrees to hold client solely liable. Zemanta agrees to make every reasonable effort to collect and clear payment from client(s) on a timely basis. Zemanta’s credit is established on a client-by-client basis. Upon request, Zemanta will make available to SSP written confirmation of the relationship between Zemanta and client. This confirmation should include, for example, client’s acknowledgement that Zemanta is its agent and is authorized to act on its behalf in connection with the specific Work Order and these Terms. In addition, upon the request of SSP, Zemanta will confirm whether client has paid to Zemanta in advance funds sufficient to make payments pursuant to the Work Order. If Zemanta’s or client’s credit is or becomes impaired, SSP may require payment in advance.
3.3 Taxes. For purposes of this Agreement, “Taxes” shall mean all federal, state, local, foreign and other net income, gross income, gross receipts, sales, purchase, use, ad valorem, value added, goods and services, harmonized sales, transfer, franchise, profits, withholding, payroll, excise, stamp, real or personal property, customs, duties or other taxes, fees, levies, assessments or charges of any kind whatsoever, including any related penalties and interest, imposed by any federal, territorial, state, local, or foreign government or any agency or political subdivision of any such government. Zemanta is solely responsible for the payment of all Taxes associated with its use of the Services and SSP is solely responsible for the payment of all Taxes associated with any payments made by Zemanta to SSP under the terms of this Agreement.
3.4 Fraudulent Activity. Each party agrees that it will not, and will not authorize or encourage any third party to, directly or indirectly generate impressions, click-throughs, conversions, cloaked inventory, and/or other actions with respect to the Services or Exchange through any automated, deceptive, fraudulent, or otherwise invalid means, including through repeated manual clicks, the use of “robots,” or other automated tools, or rendering or placing ads in a way to achieve excessive amount of accidental click-throughs (“Fraudulent Activity”) . If Zemanta suspects Fraudulent Activity, then Zemanta shall notify SSP via email that it suspects Fraudulent Activity and Zemanta, in its sole discretion, may withhold payment to SSP. Zemanta and SSP agree to work in good faith to resolve any dispute regarding Fraudulent Activity. If the parties are unable to resolve the dispute within thirty (30) days from the date of notification of the dispute, then Zemanta and SSP agree to submit the dispute to binding arbitration with a single arbitrator and each party shall bear their own attorneys’ fees but share the cost of the arbitrator.
3.5 Prohibited Placements. SSP shall not place and will not allow to place ads from Zemanta in any context that would not conform to Federal Trade Commission industry guidelines for native advertising. SSP shall not place ads and it will not allow to place ads from Zemanta by injecting them into third party web pages or apps through browser extensions, injection proxies or other similar mechanisms.
4. Term/Termination.
4.1 Term. The term of this Agreement shall begin on the Effective Date and continue for one (1) year or as specified on the Cover Page, unless terminated earlier.
4.2 Termination. Either party may terminate this Agreement for convenience at any time by providing thirty (30) calendar days’ prior written notice. In addition, either Party may terminate this Agreement if the other party breaches this Agreement; provided that (a) the non-breaching Party provides the breaching Party written notice of such breach and (b) the breaching party fails to cures such breach within thirty (30) days of such notice.
4.3 Effect of Termination. Upon termination of this Agreement, Zemanta’s access to the Services shall cease and SSP shall not be under any further obligation to provide the Services under the terms of this Agreement. Zemanta shall pay SSP any fees owed to SSP within sixty (60) days from the date of termination. Sections 1-3, 4.3 and 6-9 and 11 shall survive the termination of this Agreement. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all Confidential Information of the other party.
5. Data Use.
Zemanta and SSP will each own the interaction data that it collects from the Services and the Exchange. SSP may not use or disclose any of the interaction data gathered by or on behalf of Zemanta except that SSP shall have the right to use the Zemanta Data for the sole purpose of providing the Services.
6. SSP’s Representations and Warranties.
6.1 SSP represents and warrants that:
1. SSP is an entity duly organized, validly existing and in good standing under the laws of its state of domicile (as listed on the Cover Page);
2. SSP (i) has the full right and authority to enter into and perform this Agreement; (ii) the execution, consent or acknowledgment of no other party is necessary in order to validate SSP’s entry into and performance of this Agreement; (iii) SSP’s entry into and performance of this Agreement does not violate any agreement binding on SSP; and (iv) this Agreement is a legal, valid, binding and enforceable obligation of SSP;
3. Nothing in the Services or Exchange infringes any intellectual property (copyright, author’s rights, trademark, etc.), personal right (right of privacy, right of publicity, defamation, etc.) or other proprietary right of any person nor do the Services or Exchange violate any local, state or federal law of the United States or any applicable international jurisdiction;
4. SSP will use commercially reasonable efforts to provide the Services according to the terms of this Agreement; and
5. SSP has all necessary rights and permissions to grant licenses in the Services to Zemanta.
6.2 No party to this Agreement has made any representations or warranties to the other except as expressly set forth in this Agreement.
7. SSP’s Warranty Disclaimer. SSP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET ZEMANTA’S REQUIREMENTS. THE SERVICE IS PROVIDED “AS IS”.
8. Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY RECEIVED BY SSP FOR THE APPLICABLE SERVICE UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.
9. Indemnification.
9.1 SSP hereby agrees to defend, indemnify and hold harmless Zemanta, its advertising clients, and their respective officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of: (i) any breach (or, as to defense obligations only, alleged breach) by SSP of any term, condition, representation or warranty under this Agreement; (ii) the websites used by SSP in providing the Services and the Exchange; (iii) Zemanta’s use of the Services or Exchange; (iv) the infringement of the Exchange or the Services, or on the intellectual property right of a third party.
9.2 Zemanta hereby agrees to defend, indemnify and hold harmless SSP and its officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of Zemanta’s gross negligence, willful misconduct or fraudulent actions.
9.3 Any claim for indemnification hereunder shall be subject to the following provisions: (i) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that it diligently undertakes such defense and that no settlement admitting liability on the part of the indemnified party or limiting the indemnified party’s rights hereunder may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
10. Maintenance and Upgrades.
10.1 Updates, Upgrades. SSP shall provide Zemanta, without any further charge to Zemanta, all updates (comprising general bug fixes and minor enhancements) and upgrades (comprising enhancements and major functionality changes) for the Services or Exchange reflecting improvements made to the underlying technology upon the implementation of such updates and upgrades to the Services or Exchange.
10.2 Maintenance. SSP may occasionally be required to suspend the Services or Exchange in order to provide maintenance services. SSP shall provide Zemanta with no less than ten (10) business days advanced written notice of any such suspension.
11. General Provisions.
11.1 Confidentiality. Both parties agree that they will hold in strictest confidence and will not use or disclose to any third party, any confidential information disclosed by the other party. For purposes of this Agreement, “confidential information” shall mean all non-public information that a party designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential. “Confidential Information” includes, without limitation, the terms and conditions of this Agreement, information relating to released or unreleased Zemanta technology (software and hardware products), marketing or promotion materials related to Zemanta’s technology, products or services or customers or suppliers of Zemanta and SSP’s Services. “Confidential Information” shall not include information that was known to either party prior to the disclosure by the other party, information that becomes publicly available through no fault of any party or information that was independently developed by either party.
11.2 Notices. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and personally delivered, sent by United States registered or certified mail, or internationally-recognized courier service such as Federal Express, duly addressed to the parties as set forth on the Cover Page. Delivery of any notice shall be deemed made on the date of its actual delivery if personally delivered, and on the date indicated in the return receipt or courier’s records as the date of its delivery or first attempt at delivery if sent by mail or courier. Any party may change its address or telecopy number for notice purposes by giving notice to the other party.
11.3 Severability. If any provision of this Agreement or its application to any party or circumstance is held invalid or unenforceable, then the remainder of this Agreement and the affected provision to the extent it is not held shall remain valid and enforceable and in full force and effect.
11.4 No Partnership. This Agreement shall not be construed as creating a partnership or joint venture between Zemanta or SSP or between either of them and any third party or cause either of them to be responsible in any manner for the other’s or any third party’s debts or obligations, including to any employees.
11.5 No Waiver. A waiver by either party of a default by the other party or of any right hereunder shall be effective only if it is in a writing signed by the waiving party and shall not be construed as a waiver of any other default or right, whether similar or dissimilar.
11.6 Transfer. Neither party may sell, assign, or otherwise transfer, or attempt to sell, assign or otherwise transfer, all or any portion of its rights or obligations under or otherwise in connection with this Agreement without the prior written consent of the other; provided, however, the foregoing prohibition shall not apply to any sale of all or substantially all of one party’s assets or any merger or reorganization to which consent of the other Party is not required.
11.7 Counterparts. This Agreement may be executed in counterparts, all of which shall constitute one instrument. Facsimile copies and electronic copies of this Agreement are acceptable as original copies.
11.8 Governing Law and Jurisdiction. This Agreement will be governed by and construed under applicable federal law and the laws of the State of New York, excluding any conflict of law provisions. Zemanta and SSP irrevocably consent to the exclusive jurisdiction of any New York state or federal court sitting in the Southern District of New York, over any suit, action or proceeding arising out of or relating to this Agreement.
11.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Zemanta and SSP and their permitted successors and assigns.
11.10 Survival. Rights and obligations under this Agreement, which by their nature should survive, will remain in effect after the termination or expiration of this Agreement.
11.11 Entire Agreement; Amendments. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein and all prior or contemporaneous agreements or understandings, oral or written, pertaining to any such matters are merged herein and shall not be effective for any purpose. No provision of this Agreement may be amended or added to except by an agreement in writing, which is signed by the parties hereto or their respective permitted successors-in-interest and indicates that it is an amendment of this Agreement.
Effective January 23, 2019 to January 24, 2019
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ZEMANTA SUPPLY SIDE PLATFORM AGREEMENT
1. SSP’s Services.
1.1 SSP’s Services. SSP will provide the following services to Zemanta (collectively the “Services”): (a) SSP will customize and implement an online advertising exchange (the “Exchange”) that performs in accordance with the functional specifications, which Exchange shall allow Zemanta to purchase impression inventory delivered by the Exchange (“Deliverables”) in near real time by bidding on the impression inventory; (b) SSP will host the Exchange; (c) SSP will provide maintenance services for the Exchange; and (d) its Services and, as necessary SSP will provide customization and support services, including reasonable education and support, during normal business hours, to Zemanta.
1.2 License Grant. Subject to the terms of this Agreement, SSP hereby grants Zemanta a non-exclusive, non-transferable right to access and use the Services. Zemanta agrees that it will not: (a) resell, license, lease, time-share, distribute or otherwise transfer to any third party its right to access and use the Services, (b) reverse engineer, decompile or dissemble the Services, (c) modify, copy or create derivative works of Services (or any part thereof), or (d) access or use Services for the purpose of building a competitive product or service or copying its features or user interface or authorize or permit a direct competitor to do so.
1.3 SSP’s Ownership. SSP retains all right, title and interest in and to the Services and Exchange, including all intellectual property rights thereto.
1.4 Acceptance. The Exchange shall conform to the OpenRTB Native 2.3 (or higher) standard and Functional Specifications (as defined on the Cover Page). Within ten (10) business days from the time SSP delivers the Exchange to Zemanta, Zemanta will review, test (including in respect of functionality, performance and usability) and either approve or reject the Exchange. Zemanta will provide all reasons for any rejection, suggesting modifications as appropriate, on an iterative basis, and SSP will correct and re-deliver the Exchange until it is in a form acceptable to Zemanta. In the event that the Exchange does not meet Zemanta’s final reasonable approval at least one (1) day prior to the launch date, either party may (without incurring any liability) terminate this Agreement upon written notice to the other party.
2. Zemanta’s Client’s Advertising Materials. SSP acknowledges and agrees that it does not have any rights or title to any of the intellectual property rights contained in Zemanta’s clients’ advertising materials, except for the right to display the Zemanta’s clients’ advertisements on the websites in accordance with this Agreement and SSP agrees that it will not use the advertising materials for any other purpose. Further, SSP may not alter the advertising materials in any way.
3. Payment.
3.1 Payment Terms. Zemanta will pay SSP in accordance with this Agreement and as set forth on the Cover Page. All payments are in US dollars. All payments under this Agreement will be in accordance to SSP’s measurements. The payable event is a successfully sent win notice that communicates the exact cost incurred by a specific bid that Zemanta has submitted and won. Zemanta will pay SSP within sixty (60) days of the end of each calendar month. If there is any disagreement with respect to any discrepancies related to the payment to SSP hereunder, the parties agree to work in good faith to resolve the dispute. If the parties are unable to resolve the dispute within thirty (30) days from the date of notification of the dispute, then Zemanta and SSP agree to submit the dispute to binding arbitration with a single arbitrator and each party shall bear their own attorneys’ fees but share the cost of the arbitrator.
3.2 Payment Liability. Unless otherwise set forth elsewhere, SSP agrees to hold Zemanta liable for payments solely to the extent proceeds have cleared from client to Zemanta for Fees incurred by bidding. For sums not cleared to Zemanta, SSP agrees to hold client solely liable. Zemanta agrees to make every reasonable effort to collect and clear payment from client(s) on a timely basis. Zemanta’s credit is established on a client-by-client basis. Upon request, Zemanta will make available to SSP written confirmation of the relationship between Zemanta and client. This confirmation should include, for example, client’s acknowledgement that Zemanta is its agent and is authorized to act on its behalf in connection with the specific Work Order and these Terms. In addition, upon the request of SSP, Zemanta will confirm whether client has paid to Zemanta in advance funds sufficient to make payments pursuant to the Work Order. If Zemanta’s or client’s credit is or becomes impaired, SSP may require payment in advance.
3.3 Taxes. For purposes of this Agreement, “Taxes” shall mean all federal, state, local, foreign and other net income, gross income, gross receipts, sales, purchase, use, ad valorem, value added, goods and services, harmonized sales, transfer, franchise, profits, withholding, payroll, excise, stamp, real or personal property, customs, duties or other taxes, fees, levies, assessments or charges of any kind whatsoever, including any related penalties and interest, imposed by any federal, territorial, state, local, or foreign government or any agency or political subdivision of any such government. Zemanta is solely responsible for the payment of all Taxes associated with its use of the Services and SSP is solely responsible for the payment of all Taxes associated with any payments made by Zemanta to SSP under the terms of this Agreement.
3.4 Fraudulent Activity. Each party agrees that it will not, and will not authorize or encourage any third party to, directly or indirectly generate impressions, click-throughs, conversions, cloaked inventory, and/or other actions with respect to the Services or Exchange through any automated, deceptive, fraudulent, or otherwise invalid means, including through repeated manual clicks, the use of “robots,” or other automated tools, or rendering or placing ads in a way to achieve excessive amount of accidental click-throughs (“Fraudulent Activity”) . If Zemanta suspects Fraudulent Activity, then Zemanta shall notify SSP via email that it suspects Fraudulent Activity and Zemanta, in its sole discretion, may withhold payment to SSP. Zemanta and SSP agree to work in good faith to resolve any dispute regarding Fraudulent Activity. If the parties are unable to resolve the dispute within thirty (30) days from the date of notification of the dispute, then Zemanta and SSP agree to submit the dispute to binding arbitration with a single arbitrator and each party shall bear their own attorneys’ fees but share the cost of the arbitrator.
3.5 Prohibited Placements. SSP shall not place and will not allow to place ads from Zemanta in any context that would not conform to Federal Trade Commission industry guidelines for native advertising. SSP shall not place ads and it will not allow to place ads from Zemanta by injecting them into third party web pages or apps through browser extensions, injection proxies or other similar mechanisms.
4. Term/Termination.
4.1 Term. The term of this Agreement shall begin on the Effective Date and continue for one (1) year or as specified on the Cover Page, unless terminated earlier.
4.2 Termination. Either party may terminate this Agreement for convenience at any time by providing thirty (30) calendar days’ prior written notice. In addition, either Party may terminate this Agreement if the other party breaches this Agreement; provided that (a) the non-breaching Party provides the breaching Party written notice of such breach and (b) the breaching party fails to cures such breach within thirty (30) days of such notice.
4.3 Effect of Termination. Upon termination of this Agreement, Zemanta’s access to the Services shall cease and SSP shall not be under any further obligation to provide the Services under the terms of this Agreement. Zemanta shall pay SSP any fees owed to SSP within sixty (60) days from the date of termination. Sections 1-3, 4.3 and 6-9 and 11 shall survive the termination of this Agreement. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all Confidential Information of the other party.
5. Data Use.
Zemanta and SSP will each own the interaction data that it collects from the Services and the Exchange. SSP may not use or disclose any of the interaction data gathered by or on behalf of Zemanta except that SSP shall have the right to use the Zemanta Data for the sole purpose of providing the Services.
6. SSP’s Representations and Warranties.
6.1 SSP represents and warrants that:
1. SSP is an entity duly organized, validly existing and in good standing under the laws of its state of domicile (as listed on the Cover Page);
2. SSP (i) has the full right and authority to enter into and perform this Agreement; (ii) the execution, consent or acknowledgment of no other party is necessary in order to validate SSP’s entry into and performance of this Agreement; (iii) SSP’s entry into and performance of this Agreement does not violate any agreement binding on SSP; and (iv) this Agreement is a legal, valid, binding and enforceable obligation of SSP;
3. Nothing in the Services or Exchange infringes any intellectual property (copyright, author’s rights, trademark, etc.), personal right (right of privacy, right of publicity, defamation, etc.) or other proprietary right of any person nor do the Services or Exchange violate any local, state or federal law of the United States or any applicable international jurisdiction;
4. SSP will use commercially reasonable efforts to provide the Services according to the terms of this Agreement; and
5. SSP has all necessary rights and permissions to grant licenses in the Services to Zemanta.
6.2 No party to this Agreement has made any representations or warranties to the other except as expressly set forth in this Agreement.
7. SSP’s Warranty Disclaimer. SSP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET ZEMANTA’S REQUIREMENTS. THE SERVICE IS PROVIDED “AS IS”.
8. Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY RECEIVED BY SSP FOR THE APPLICABLE SERVICE UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.
9. Indemnification.
9.1 SSP hereby agrees to defend, indemnify and hold harmless Zemanta, its advertising clients, and their respective officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of: (i) any breach (or, as to defense obligations only, alleged breach) by SSP of any term, condition, representation or warranty under this Agreement; (ii) the websites used by SSP in providing the Services and the Exchange; (iii) Zemanta’s use of the Services or Exchange; (iv) the infringement of the Exchange or the Services, or on the intellectual property right of a third party.
9.2 Zemanta hereby agrees to defend, indemnify and hold harmless SSP and its officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of Zemanta’s gross negligence, willful misconduct or fraudulent actions.
9.3 Any claim for indemnification hereunder shall be subject to the following provisions: (i) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that it diligently undertakes such defense and that no settlement admitting liability on the part of the indemnified party or limiting the indemnified party’s rights hereunder may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
10. Maintenance and Upgrades.
10.1 Updates, Upgrades. SSP shall provide Zemanta, without any further charge to Zemanta, all updates (comprising general bug fixes and minor enhancements) and upgrades (comprising enhancements and major functionality changes) for the Services or Exchange reflecting improvements made to the underlying technology upon the implementation of such updates and upgrades to the Services or Exchange.
10.2 Maintenance. SSP may occasionally be required to suspend the Services or Exchange in order to provide maintenance services. SSP shall provide Zemanta with no less than ten (10) business days advanced written notice of any such suspension.
11. General Provisions.
11.1 Confidentiality. Both parties agree that they will hold in strictest confidence and will not use or disclose to any third party, any confidential information disclosed by the other party. For purposes of this Agreement, “confidential information” shall mean all non-public information that a party designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential. “Confidential Information” includes, without limitation, the terms and conditions of this Agreement, information relating to released or unreleased Zemanta technology (software and hardware products), marketing or promotion materials related to Zemanta’s technology, products or services or customers or suppliers of Zemanta and SSP’s Services. “Confidential Information” shall not include information that was known to either party prior to the disclosure by the other party, information that becomes publicly available through no fault of any party or information that was independently developed by either party.
11.2 Notices. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and personally delivered, sent by United States registered or certified mail, or internationally-recognized courier service such as Federal Express, duly addressed to the parties as set forth on the Cover Page. Delivery of any notice shall be deemed made on the date of its actual delivery if personally delivered, and on the date indicated in the return receipt or courier’s records as the date of its delivery or first attempt at delivery if sent by mail or courier. Any party may change its address or telecopy number for notice purposes by giving notice to the other party.
11.3 Severability. If any provision of this Agreement or its application to any party or circumstance is held invalid or unenforceable, then the remainder of this Agreement and the affected provision to the extent it is not held shall remain valid and enforceable and in full force and effect.
11.4 No Partnership. This Agreement shall not be construed as creating a partnership or joint venture between Zemanta or SSP or between either of them and any third party or cause either of them to be responsible in any manner for the other’s or any third party’s debts or obligations, including to any employees.
11.5 No Waiver. A waiver by either party of a default by the other party or of any right hereunder shall be effective only if it is in a writing signed by the waiving party and shall not be construed as a waiver of any other default or right, whether similar or dissimilar.
11.6 Transfer. Neither party may sell, assign, or otherwise transfer, or attempt to sell, assign or otherwise transfer, all or any portion of its rights or obligations under or otherwise in connection with this Agreement without the prior written consent of the other; provided, however, the foregoing prohibition shall not apply to any sale of all or substantially all of one party’s assets or any merger or reorganization to which consent of the other Party is not required.
11.7 Counterparts. This Agreement may be executed in counterparts, all of which shall constitute one instrument. Facsimile copies and electronic copies of this Agreement are acceptable as original copies.
11.8 Governing Law and Jurisdiction. This Agreement will be governed by and construed under applicable federal law and the laws of the State of New York, excluding any conflict of law provisions. Zemanta and SSP irrevocably consent to the exclusive jurisdiction of any New York state or federal court sitting in the Southern District of New York, over any suit, action or proceeding arising out of or relating to this Agreement.
11.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Zemanta and SSP and their permitted successors and assigns.
11.10 Survival. Rights and obligations under this Agreement, which by their nature should survive, will remain in effect after the termination or expiration of this Agreement.
11.11 Entire Agreement; Amendments. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein and all prior or contemporaneous agreements or understandings, oral or written, pertaining to any such matters are merged herein and shall not be effective for any purpose. No provision of this Agreement may be amended or added to except by an agreement in writing, which is signed by the parties hereto or their respective permitted successors-in-interest and indicates that it is an amendment of this Agreement.
Zemanta.com Terms of Service
Effective September 23, 2020
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Zemanta.com Terms of Service
Last Updated: September 23, 2020
Welcome to Zemanta’s Terms of Use (the “Terms”). These Terms govern your (hereafter “ you”, “your” or “user ”) use of this website and the products and services available at this website, www.zemanta.com, and any related website linked to this URL address, (collectively the “ Site”) and/or created, controlled or operated by Zemanta, Inc. (hereafter “Zemanta ”, “we” “us ” or “our”). The Site features Zemanta's proprietary technology in its various forms and other services Zemanta may make available from time to time (collectively, the “Service"). By accessing the Site or using any part of the Service, you agree to be bound by these Terms. If you do not agree to these Terms, then you may not access the Site or use the Service.
1. General Use.
Subject to these Terms, Zemanta hereby grants you a limited, non-exclusive, and non-transferable license to use the Site. You can simply visit and use the Site and you do not need to register with Zemanta to do so. We reserve the right to modify these Terms at any time. By continuing to access or use the Site or Service, you agree to such modifications.
2. Intellectual Property, Digital Millennium Copyright Act (DMCA) and Takedown Notice.
2.1 Intellectual Property Ownership and Use. You acknowledge and agree that all of our trademarks, logos, copyrights, and all other intellectual property rights in all material or content contained within the Site shall remain at all times vested in us. You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or its materials in any manner. In cases where we use material or content under authority from a third party, such rights remain vested in the owner of such material or content. All Site content and all materials contained within the Site are owned by Zemanta or used by Zemanta under authorization, and are protected by applicable trademark and copyright laws.
2.2. DMCA. If you believe that your work has been copied and posted on the Site or through Zemanta’s Service in a way that constitutes copyright infringement, please provide us with the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(b) a description of the copyrighted work that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located on the Site or in our Service;
(d) your address, telephone number, and email address;
(e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
(b) a description of the copyrighted work that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located on the Site or in our Service;
(d) your address, telephone number, and email address;
(e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Please send all of the above information to:
By e-mail: [email protected]
By mail: Zemanta Inc., 39 West 13th Street, New York, NY 10011; ATTN: DMCA Agent and Legal Department
By e-mail: [email protected]
By mail: Zemanta Inc., 39 West 13th Street, New York, NY 10011; ATTN: DMCA Agent and Legal Department
If you do not send us all of the required information, your notice/request may not be valid.
2.3. If you believe any of your other intellectual property rights, have been violated, please follow the same information and a takedown request sent to: [email protected].
2.4 Notice and Takedown. Zemanta does not control the content on its network however, we require our advertisers to comply with certain advertising guidelines. Despite various safeguards, Zemanta recognizes that from time to time (i) advertiser content may be in breach of relevant copyright laws, contain references which may be regarded as defamatory, promote fake news and/or contain fraudulent or misleading information or links; or (ii) advertisements may appear alongside content which the advertiser determines is not brand safe or per their guidelines. If you have identified content of this nature, please email [email protected] with the following information (i) your contact details (ii) the full details of the material in question (iii) the URL where you found the material and; (iv) the reason for your request e.g. complaint about defamatory content. Upon receipt of your notification, Zemanta will comply with the following Notice and Takedown procedure: (a) Zemanta will endeavour to acknowledge receipt of your complain by email and within 48 hours of receipt. (b) Following confirmation of receipt, Zemanta will commence an investigation to access the validity and plausibility of the complaint. If Zemanta determines that the initial complain may be valid pending further investigation, Zemanta may temporarily suspend or remove a particular campaign from its network. (c) Zemanta may contact the relevant advertiser who is responsible for the content, it relevant. If Zemanta does so, the advertiser will be notified that their content is subject to a complaint, under what grounds and will be encouraged to address the complaints concerned. If relevant, the complaint and the advertiser will be encouraged to resolve the issue swiftly and amicably and to the satisfaction of both parties. (d) Following the finalization of Zemanta's investigation, Zemanta may: - allow the advertiser to continue to display the content unchanged; or - allow the advertiser to continue to display the content with changes; or - permanently remove the content from its network and usually within 48 hours of Zemanta determining this is the appropriate course of action.
3. Privacy; Other Terms.
Your use of the Site or Service is also governed by Zemanta’s Privacy Policy. By using the Site or Service, you agree to the terms set forth in that policy. In addition, we may use cookies or other automated means of data collection. Please read our Privacy Policy for more information.
4. Disclaimer of Warranties and Limitation of Liability.
ZEMANTA EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE SITE. EXCEPT FOR BODILY INJURY, IN NO EVENT WILL ZEMANTA OR ITS AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICE, AND THE DATA, WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SITES; OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $1,000. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. ZEMANTA DISCLAIMS ALL LIABILITY OF ANY KIND OF ZEMANTA'S AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU UNDERSTAND AND AGREE THAT YOUR SOLE RIGHT AND REMEDY AGAINST ZEMANTA IS TO DISCONTINUE USE OF THE SITE.
5. Indemnity.
You agree to indemnify, defend and hold harmless Zemanta, its parents, subsidiaries, affiliates, customers and vendors, and their respective officers, directors and employees from any liability, damage, cost, or fees (including reasonable attorneys' fees) arising from: (i) any claim or demand made by any third party due to or arising out of your access to the Site; (ii) your use of the Service or Site, and/or violation of the Terms; (iii) or the infringement by you, or any third party using your Zemanta account, of any intellectual property or other right of any person or entity.
6. Governing Law.
6.1. These Terms shall be governed by and construed in accordance with the laws of the State of New York in the United States, without regard to its choice of law provisions. You agree to submit to personal jurisdiction in the State of New York and further agree that any cause of action arising from or relating to the use of the Site or these Terms shall be brought exclusively in the Federal or State Courts residing in New York, New York.
To the fullest extent of the law, you agree that any claim or cause of action arising from or relating to use of the Site or these Terms must be filed within one (1) year after such claim or cause of action arose, or be forever barred.
6.2. Under California Civil Code Section 1789.3, residents of California who use the Site are entitled to know that they may file grievances and complaints with: Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at [email protected].
7. Termination.
Zemanta, in its sole discretion, may terminate or suspend use of the Sites at any time for any reason or for no reason at all, without prior notice or liability to you. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
8. Miscellaneous.
8.1. We are not responsible for the availability of any websites, applications, or other offerings owned or controlled by third-parties. We do not endorse and are not responsible or liable for, directly or indirectly, the operation of such third-party websites, their privacy practices and/or the content (including misrepresentative or defamatory content), including (without limitation) any advertising, products, or other materials or services on or available from such websites or resources; nor for any damage, loss, or offense caused or alleged to be caused by, or in connection with, the use of or reliance on any such content, goods, or services available on such third-party external sites or resources.
8.2 When using the Site, you agree to comply with all laws in your jurisdiction (including but not limited to copyright laws) and not use the Site for any purpose that is unlawful or prohibited by these Terms. By way of example, you shall not: (i) post or transmit any communication or solicitation intended to obtain password, account, or private information from any Zemanta user; (ii) create or submit spam to any Zemanta users or any URL; (iii) use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission; (iv) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site or Service; and (v) bypass any measures we may use to prevent or restrict access to the Site.
8.3. If any part of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed to be severable from these Terms and shall not affect the validity and enforceability of any of the remaining provisions of the Terms.
9. Electronic Communications.
Please send any questions or concerns regarding these Terms to [email protected]. By communicating with us electronically you acknowledge that communications by email are not considered confidential.
Effective January 23, 2019 to September 23, 2020
DownloadTable of Contents
Zemanta.com Terms of Service
Last Updated: October 9, 2013
The following terms and conditions (“Terms of Service”) govern your (“you, your or user”) use of the services and products including, but not limited to, the hosted Zemanta metadata and content enhancements generation and retrieval services, proprietary recommendation technology in its various forms (“Recommendations”), sample code, or Zemanta-developed applications (collectively, “Service”) available at the website located at the URL: www.zemanta.com (“Site”). The Service may be used on the Site, or on your website or your affiliated websites via any software code that Zemanta may make available to you from time to time. The Service is offered subject to your acceptance without modification of these Terms of Service and all other operating rules, policies (including, without limitation, Zemanta’s Privacy Policy) and procedures that may be published from time to time on this Site by Zemanta (collectively, the “Agreement”).
Please read these Terms of Service carefully before accessing or using the Service or Site. By accessing the Site or using the Service, you agree to become bound by these Terms of Service and you are entering into a legally binding agreement with Zemanta, Inc., a Delaware corporation with its principal offices at 33 West 17th Street, Suite 903, New York, NY 10011 (“Zemanta”). If you do not agree to these Terms of Service, then you may not access or use the Site or Service.
1.ELIGIBILITY/ACCOUNT REGISTRATION.
1.1 Eligibility. The Service is available only to individuals who are at least 18 years old, whether acting on their own behalf or as an authorized employee or representative of a corporation or other business entity. If you do not so qualify, do not attempt to register for or use the Service.
1.2 Account Registration. You are not required to register on the Site in order to use the Service. These Terms of Service apply whether or not you register on the Site. If you register on the Site, you will have access to online reports and you can control Recommendations and certain other settings for the Service through your account (“Zemanta Account”). To register, you must provide certain information to Zemanta. Specifically, if you register as a blogger, then you need to provide Zemanta with a valid blog URL. If you register as a Partner, then you must provide Zemanta with including, without limitation, your first and last name, address, and valid email address and any other contact information requested by Zemanta. Before you complete your registration, you will be sent a link to your email address, which you must click to validate your Zemanta account. In addition, if you register for an account with Zemanta, then you are responsible for all activity under your account as well as any passwords for your account. You must notify Zemanta immediately if you suspect someone is using your account without your consent or any security breach related to your account.
2. USING THE SERVICE.
2.1 The Gist. Zemanta’s basic service is free and we offer upgrades for advanced features such as customization and guaranteed service levels. Our service is designed to enhance content submitted to it by analyzing that content and returning relevant metadata (tags, entities, categories) and content enhancements (related article, image links, graphics, photographs, illustrations, audio clips and video clips to you (collectively, “Recommendations”). The Service stores the derived metadata and content enhancements and can make them available to others provided they possess the appropriate Request ID (RID). The service also stores submitted content except in certain cases when handling delicate information (as specified below). There are several different ways to use the Service.
2.2 Displaying Zemanta’s Icon Logo.
When deploying or utilizing Zemanta Recommendations on your website or within your application, you agree (but are not required) to do the following:
- display the Zemanta Icon logo;
- if you display the Zemanta Icon logo, then you agree not to make any changes to the shape and size of the Zemanta logo, or other Zemanta Recommendations;
- if you display the Zemanta Icon logo and a reader clicks on the Zemanta Icon logo, then you agree to hyperlink that logo directly to our home page at http://www.zemanta.com, or other appropriate page within our site; and
- inform your end users to whom you display Recommendations about licenses suggested by Zemanta. This includes displaying license information during the authoring process and inclusion of correct attribution and other information mandated by licenses along pieces of content when they are used.
2.3 Non-Partner Users. A Non-Partner user is someone who submits content (including both manual and automated submissions) to the Service for contextual analysis using the Non-Partner User’s Zemanta-assigned license key or using the Service through our software (browser extension, API or server plugin) or uses one or more of the Recommendations retrieved through the Service.
2.4 Partner. Some Recommendations may consist of content that our customers pay us to promote (“Promoted Content”). Some of Zemanta’s customers can earn credits for the display and performance of the Promoted Content (“Partner”) as more fully described in a separate agreement between Partner and Zemanta. Some Recommendations may consist of content from other publishers, which are provided to Zemanta in exchange for promotional consideration (“Exchange Content”). Exchange Content does not generate revenue for the Site or you but does earn you promotional consideration elsewhere in the Zemanta Network.
3. YOUR CONTENT.
3.1 Zemanta’s Right to Use Your Content. You understand that Zemanta can retain a copy of the content, metadata and content enhancements submitted you (collectively, “User Content”). By submitting User Content, you grant Zemanta a non-exclusive perpetual, sublicensable, royalty-free license to copy, reproduce, distribute, create derivatives, modify, alter, publicly display, publicly perform and digitally transmit the User Content in all media now known or hereafter discovered.
3.2 Other. Zemanta has not reviewed, and cannot review, all of the User Content or other material, stored in the Service, and cannot therefore be responsible for that User Content or other material. By operating the Service, Zemanta does not represent or imply that it endorses the User Content or other material there displayed, recommended or stored, or that it believes such User Content or other material to be accurate, useful,non-harmful, or non-infringing. The Service may store and return to you User Content, Recommendations or material that are offensive, indecent, or otherwise objectionable, as well as User Content, Recommendations or material containing technical inaccuracies, typographical mistakes, and other errors. The Service may also contain User Content, Recommendations or material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. You are solely responsible for determining whether you have the legal right to use any User Content, Recommendations, images or other materials displayed or recommended to you. Zemanta disclaims any responsibility for any harm or liability resulting from the use of the Service, User Content, Recommendations or other materials.
4. PROHIBITED USES.
As a condition of your use of the Service, you agree not to use the Service, the Data (as defined below) or Code (as defined below) for any purpose that is unlawful or prohibited by these Terms of Service, or any other purpose not reasonably intended by Zemanta. By way of example, and not as a limitation, you agree not to use the Service:
- to solicit, abuse, harass, threaten, impersonate or intimidate other Zemanta users, customers or Partners;
- in any manner that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party;
- for any illegal or unauthorized purpose. You agree to comply with all local laws regarding online conduct and acceptable content;
- to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Zemanta user or Partner;
- to create or submit spam;
- to violate any laws in your jurisdiction (including but not limited to copyright laws);
- to submit stories or comments linking to affiliate programs, multi-level marketing schemes, sites/blogs repurposing existing stories (source hops), or off-topic content;
- use any robot, spider, scraper or other automated means to access the Site or Service for any purpose without our express written permission;
- to take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our Site or Service infrastructure;
- to interfere or attempt to interfere with the proper working of the Site, Service or any activities conducted on the Site;
- to bypass any measures we may use to prevent or restrict access to the Site or Service;
- to artificially alter the Recommendations, or any other Service, including by way of creating separate user accounts for the purpose of artificially altering the Service or Recommendations; artificially inflating clicks on Recommendations or Promoted Content, or participating in any other organized effort that in any way artificially alters the results of the Service;
- to use any metadata and content enhancements or RIDs produced by Zemanta to create a metadata and content enhancements retrieval service similar to Zemanta. To ensure the quality of metadata and content enhancements for all Zemanta users we want to maintain a single verifiable metadata and content enhancements storage location;
- to resell the service as is or as a part of other service;
- to do bulk processing where you are adding minimal value beyond adding Zemanta metadata and content enhancements to the content. For example – if you’re a webcrawler you shouldn’t send everything to Zemanta before sending it to your users or into your index;
- to use Zemanta in conjunction with any effort to track, monitor or analyze user behavior in any manner, if you are an ISP or other provider of Internet connectivity;
- to use in conjunction with deep packet inspection or similar monitoring technologies is specifically prohibited; and
- to employ any techniques to avoid Zemanta’s daily limitation of 1000 requests per day. To increase this limit, please contact Zemanta at [email protected]
The following sites are strictly prohibited from using the Service and Zemanta will actively terminate the Service from sites it finds to be in violation of these prohibitions: sites displaying adult, obscene, pornographic, libelous, infringing abusive or defamatory content, sites participating in, or encouraging participation in, illegal activities, sites that promote hate and discrimination, sites that facilitate the sale of firearms or illegal drugs. In addition, Zemanta reserves the right in its sole editorial discretion to disable its Service on any site. Zemanta, in its sole discretion, may remove any content, including User Content, from the Site for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content), at any time. To report abuse to these Terms of Service, please email [email protected].
PERMISSION TO USE ZEMANTA SERVICE.
5.1 Grant of License. Subject to your full compliance with all of the terms and conditions of these Terms of Service, Zemanta grants you a limited non-exclusive, revocable, nonsublicensable, nontransferable license to use (i) the Service; (ii) any application program interface or any other software code that we may make available to you from time to time provided by Zemanta (collectively, the “Code”); (iii) any Zemanta end-user documentation, solely when bundled with Service; and (iv) any upgrades, updates and new versions of the Service, as further described below. Such license shall include the right to use any Zemanta intellectual property rights associated with or related to use of the Code, other matters related to the Service, and the Zemanta end user documentation, solely in connection with the use of the Service as explained in Zemanta Support located at http://support.zemanta.com/.
5.2 License Restrictions. Except as expressly and unambiguously authorized under these Terms of Service, you may not (i) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the (a) reports (collectively, “Data”) to which Zemanta may provide you to access in a variety of formats, or (b) Code, or (ii) otherwise use the Code or the Service on behalf of any third party. Except as provided in these Terms of Service, these Terms of Service do not include any right for you to use any trademark, service mark, trade name or any other mark of Zemanta or any other party or licensor. No rights or licenses are granted except as expressly and unambiguously set forth herein. If you violate any of the foregoing restrictions, Zemanta shall own all right, title and interest relating to any and all derivative works, inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, as they may relate to the use of the Service or the Code. You hereby agree to make all assignments necessary to accomplish the foregoing ownership.
5.3 Changes and Updates. Zemanta may release updates, upgrades or new versions of the Service or the Code, or other software related to the Service, to be incorporated as instructed on the Site. You agree that any access to any Zemanta Code or software granted pursuant to these Terms of Service will not limit or restrict Zemanta’s right to modify or replace such Code or software in future versions of the Service. The licenses granted to you herein shall be deemed to include such items.
5.4 No Other Licenses. The licenses granted hereunder are specifically set forth herein, and no licenses are granted by Zemanta to you by implication or estoppel.
5.5 End-User Licensing. You agree that for each of your websites and/or software product(s) that use the rights granted herein, such website’s terms and conditions will include terms to ensure that: (i) the Service, Data and the Code shall be at least as protected as your own proprietary software applications, and (ii) such proprietary software applications are protected by the terms of use on such website. Additionally, the privacy policy of the applicable website and/or software product(s) should explain that the Data is routed to a third party that owns such data, but such routing does not include any personally identifiable information. You agree to include in such terms and conditions for use outside of the United States any country-specific provisions needed to comply with the foregoing, and agree to enforce the terms and conditions applicable to the Service, Data and the Code contained in such license.
ZEMANTA’S INTELLECTUAL PROPERTY/PROPRIETARY RIGHTS.
6.1 Trademark License. Zemanta hereby grants to you a personal, limited, non-exclusive, non-transferable, fully-paid license to use Zemanta’s marks, graphics, logos, designs, page headers, button icons, scripts and service names (collectively, “Zemanta Marks”). You may use the Zemanta Marks in conjunction with your use of the Code, the Data or the Service on any pages of your websites or affiliate websites that feature any aspect of the Service. You may publish blog posts on your blog or affiliate blogs that include the use of Zemanta Marks at any time without additional authorization by Zemanta, provided that you make reasonable efforts to send the blog post to Zemanta prior to or concurrent with publishing thereof. Nothing in this Agreement grants you ownership or any rights in or to use the Zemanta Marks, except in accordance with this license. Under no circumstances may you disparage or otherwise abuse the Zemanta Marks, nor violate any terms of the User Conduct rules set forth above. The rights granted to you in this license will terminate upon any termination or expiration of these Terms of Service and you will no longer make any use of any Zemanta Marks.
6.2 Proprietary Rights. All right, title interest in and to the Site, Service, compilations magnetic translation, digital conversions, Code, software and other materials related to the Service (except images or other materials owned by third-parties) are and shall at all times remain the sole and exclusive property of Zemanta and are protected by applicable intellectual property laws and treaties. All Data related to the Site or collected by way of the Service on any website shall be the sole property of Zemanta. You acknowledge that you do not acquire any ownership rights in or to the Service or the Data. All rights not expressly granted to you in these Terms of Service are reserved by Zemanta.
WARRANTY DISCLAIMER.
You acknowledge that Zemanta has no control over, and no duty to take any action regarding: which users gain access to the Service; what effects the Service may have on you, your website or equipment; the accuracy or how you may interpret, rely on, or use the Service or the Data, including without limitation any loss of reputation or loss of traffic on your website or any website of any of your affiliates; or what actions you may take as a result of having been exposed to the Service. You further acknowledge and agree that Zemanta shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, or reliance on, any content, User Content, Recommendations, goods or services available on or through any third party website linked or referred to by any portion of the Service or Data. You release Zemanta from all liability with respect to the Service, and any content, User Content, Recommendations or Data provided or accessed via the Service or through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Zemanta makes no representations concerning the Data or any content, User Content or Recommendations contained in or accessed via the Service or the Site, including without limitation Promoted Content or Recommendations and Zemanta will not be responsible or liable for the contents, accuracy, copyright compliance, legality or decency of User Content or any third party content or services accessed via the Service or the Site or for your reliance on any of the foregoing. THE SERVICE, THE CODE AND THE DATA ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, PROVIDED, HOWEVER, ZEMANTA WARRANTS THAT IT HAS ALL THE NECESSARY RIGHTS, TITLES AND INTERESTS IN THE SERVICE AND THE CODE, TO GRANT YOU THE RIGHTS AND LICENSES CONTAINED IN THESE TERMS OF SERVICE. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT REQUIRED BY APPLICABLE LAW, ZEMANTA AND ITS AGENTS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE, THE CODE AND THE DATA, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ZEMANTA DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE SERVICE, THE CODE OR THE DATA WILL BE UNINTERRUPTED OR ERROR FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY.
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL ZEMANTA OR ITS AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICE, AND THE DATA, EVEN IF ZEMANTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE, OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $1,000. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. ZEMANTA DISCLAIMS ALL LIABILITY OF ANY KIND OF ZEMANTA’S AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU UNDERSTAND AND AGREE THAT YOUR SOLE RIGHT AND REMEDY AGAINST ZEMANTA IS TO DISCONTINUE USE OF THE SERVICE.
9. INDEMNITY.
You agree to indemnify, defend and hold harmless Zemanta, its parents, subsidiaries, affiliates, employees, agents, customers, vendors and their respective officers, directors and employees from any liability, damage, cost or fees (including reasonable attorneys’ fees) arising from: (i) any claim or demand made by any third party due to or arising out of your access to the Site; (ii) your use of the Service, the Code, the Data and violation of the Terms of Service by you; (iii) or the infringement by you, or any third party using your Zemanta account, of any intellectual property or other right of any person or entity.
10. COPYRIGHT POLICY.
If you believe that your work has been used in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify Zemanta at [email protected] or Copyright Agent, Zemanta, Inc., 33 West 17th Street, New York, NY 10011 by providing all of the following in writing: (1) identify the copyrighted work you claim has been infringed or if multiple copyrighted works, then a representative list of such works on the website; (2) identify the material on the website that you claim is infringing and with enough detail so that we may locate the material; (3) provide a statement that you have a good faith belief that the use of the material on the website is not authorized by the copyright owner, its agent, or the law; (4) provide a statement declaring that the notification is accurate, and, under penalty of perjury, that you are the owner of the copyright interest involved or that you are authorized to act on behalf of the exclusive owner; (5) provide information reasonably sufficient to permit Zemanta to contact you, such as an address, telephone number, and email address; and (6) your physical or electronic signature. Upon receipt of notice as described above, Zemanta will take whatever action, in its sole discretion, it deems appropriate, including removal of the alleged infringing material from the Site.
11. REPRESENTATION AND WARRANTY.
You represent and warrant that:
- your use of the Service will be in strict accordance with the Zemanta Privacy Policy, with these Terms of Service and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the country in which you reside);
- your use of the Service will not infringe or misappropriate the intellectual property rights of any third party.
- you will not to alter linking, credit or references that we provide with Recommendations;
- you will use Recommendations in the form provided and not change its size, scheme or format;
- if you syndicate, publish or otherwise transmit any content containing, enhanced by or derived from Zemanta-generated metadata and content enhancements you will use you best efforts to incorporate the correct Zemanta-provided credits in the post of the content. You specifically agree not to attach credits to your content with any intent to mislead, spam, spoof, phish or otherwise deceive downstream consumers of your content;
- your User Content does not contain or will result in the installation of any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- your User Content is not spam, and does not contain unethical or unwanted commercial content designed to drive traffic to third-party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
- your User Content is not obscene, libelous or defamatory, hateful or racially or ethnically objectionable, and does not violate any proprietary rights, including but not limited to, any intellectual property rights (copyright, patent or trade secrets), privacy or publicity rights of any third party; and
- you have, in the case of your User Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by Zemanta or otherwise;
12. TERMINATION.
12.1 Service Termination. Without limiting any of the above representations or warranties, Zemanta has the right (though not the obligation) to, in Zemanta sole discretion (i) refuse to provide the Service to you or allow you to access the Site, if it in Zemanta reasonable opinion, violates any Zemanta policy or is in any way harmful or objectionable, or (ii) immediately terminate or deny access to and use of the Site or Service to any individual or entity for any reason, in Zemanta’s sole discretion.
12.2 Termination of Terms of Service/Agreement. Zemanta may terminate your access to all or any part of the Site or Service at any time, with or without cause, with or without notice, effective immediately. Upon termination of your account, your right to use the Site or Service will immediately cease and you shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Service, the Code and any the Data, and shall so certify, if requested, to Zemanta that such actions have occurred. If you wish to terminate these Terms of Service or Agreement you may simply cease utilizing the Site or Service. All provisions of these Terms of Service and Agreement, which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
13. CHOICE OF LAW AND VENUE.
You agree that the laws of the State of New York, without regard to conflict of law provisions, will govern these Terms of Service and any dispute that might arise between you and Zemanta in connection with these Terms of Service, the Site or the Service. In addition, you agree to submit and consent to the personal and exclusive jurisdiction in and the exclusive venue of the state and federal courts located in the Southern District of New York.
14. ZEMANTA PRIVACY POLICY.
Zemanta’s privacy policy is available at http://www.zemanta.com/blog/privacy-policy/, which is incorporated herein by reference.
15. MODIFICATIONS.
Zemanta reserves the right, at its sole discretion, to modify or amend these Terms of Service, including the right to add to or remove terms in these Terms of Service. If Zemanta modifies these Terms of Service, then Zemanta will post the revised version of these Terms of Service on this page and the date the Terms of Service were last updated. Except as otherwise stated in these Terms of Service, all amended terms shall automatically be effective 30 days after they are initially posted. You should review these Terms of Service from time to time, as you are solely responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Site or Service after any modifications to these Terms of Service are posted constitutes your acceptance of the modified Terms of Service. If you do not agree to abide by these Terms of Service or any future modifications to these Terms of Service, then you cannot use or access the Site or Service.
16. MISCELLANEOUS.
16.1 General. Zemanta may assign its rights under these Terms of Service without condition. You may not. These Terms of Service will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. Zemanta reserves the right to modify, update or discontinue the Site or Service in its sole discretion at any time, for any or no reason, and with or without notice or liability. Zemanta may provide you with notices by regular mail, email or through the Site. The Agreement constitutes the entire agreement between you and Zemanta regarding the use of the Site or Service, and supersedes any prior agreements between you and Zemanta relating to your use of the Site or Service. The failure of Zemanta to exercise or enforce any right or provision of these Terms of Service or any other policy or agreement or any prior version of these Terms of Service shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these Terms of Service is held invalid, the remainder of these Terms of Service shall continue in full force and effect.
16.2 Government Use. If you are part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Service is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Service and the Data each are a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of such items by the Government shall be governed solely by the terms of these Terms of Service.
16.3 Export Control. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Service in violation of any such restrictions, laws or regulations. By downloading or using the Service and the Data associated with the Service, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country.
16.4 California Residents. In accordance with Cal. Civ. Code §1789.3, California residents may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by writing them at 400 R Street, Sacramento, CA 95814 or by telephone at (800) 952-5210.
17. QUESTIONS OR COMMENTS.
Any questions or comments regarding, or problems with, the Site or Service should be sent to the Zemanta Support at [email protected]
We based these Terms of Service under those released by Automattic and Reuters under a Creative Commons Sharealike license. Thanks for sharing.
Privacy Policy
Effective April 30, 2020
DownloadTable of Contents
Zemanta Privacy Policy
Zemanta is committed to protecting your personal data. This privacy policy (“Privacy Policy”) governs Zemanta’s use of data collected by us, including any and all personal data. Personal data is information that relates to you and may identify you as an individual. We use your personal data in line with all applicable laws. In addition to the information contained herein, we have created a Glossary of Terms to help you navigate this Privacy Policy.
1. Who we are, What we do, How you can contact Zemanta, our DPO or the relevant authorities
Who we are:
Zemanta means Zemanta Inc., a Delaware, USA corporation with headquarters in New York; and its affiliated subsidiaries (collectively, “Zemanta,” or “we“, “us“, “our“).
What we do:
How to contact us:
We regularly review our compliance with this Privacy Policy. Questions, comments and requests regarding this Privacy Policy are welcomed and should be addressed to [email protected] or by mail to Zemanta Inc., 33 West 13thStreet 3rd Floor, New York New York 10011, Attn: Privacy Questions.
If Zemanta does not satisfactorily answers your questions or concerns, you may also contact the following for advice, support or complaints:
- Zemanta’s external Data Protection Officer (“DPO”): ePrivacy GmbH, represented by Prof. Dr. Christoph Bauer. ePrivacy GmbH can be reached directly at [email protected]; and/or
- the Information Commissioner’s Officer, which is Zemanta’s lead supervisory service within the European Territories.
Self-Regulatory Bodies
We adhere to:
- the Self-Regulatory Principles set forth by the Digital Advertising Alliance (DAA) and the European Interactive Digital Advertising Alliance (EDAA);
- the NAI Code of Conduct for Web and Mobile;
- the Interactive Advertising Bureau’s (IAB) Self-Regulatory Principles for Online Behavioral Advertising; and
- the IAB Europe OBA Framework.
2. Zemanta User Types (including Opt Out Options)
Much of this Privacy Policy is divided into sections based on the way you may interact with Zemanta. Please determine what user type you are. For each user type we’ve explained what information we collect and why, what cookies and other similar technologies we use, how we share such information, and your rights.
Site Visitors: You are a Site Visitor when you visit and interact with our web sites, web pages, interactive features, blogs and their respective contents at Zemanta.com (or any derivation, such as Zemanta.co.uk; Zemanta.fr; Zemanta.de etc.). See more here.
(a) What information we collect and why
We want to understand what services on Our Sites interest you and we want to remind you about the services we offer when you are not on Our Sites. To do this, we collect the following information from you: (i) IP address; (ii) User Agent data: device type (e.g., iPhone), browser type (e.g., Chrome), operating system (e.g., iOS); (iii) the pages visited on Our Site (e.g., the Zemanta “About” page); (iv) the time of visit (and corresponding timezone); and (v) referring URLs and other information normally transmitted in HTTP requests (e.g., this information tells us how you arrived on Our Sites).
(b) What cookies and other similar technologies we use
Please see this Cookie Table under “Site Visitors” for a detailed list of the cookies (and their corresponding retention periods) we use when you visit Our Sites.
(c) How we may share information
- Sharing Information we learn about you on Our Sites.
In general, we do not share personal data about you with third parties for third party marketing or advertising purposes. However, we use various third parties (each listed on this Cookie Table) to help us market or advertise to you. For example, some of the cookies we use on Our Sites belong to third parties that will help Zemanta market or advertise to you. We require that these third parties and companies agree to keep all information shared with them confidential and to use the information only to perform their obligations to us. We do this by entering into agreements with all third parties who process personal data on our behalf to ensure that they process your personal data in accordance with our strict instructions and all applicable data protection laws.
Using Third Party Services on Our Sites.
Our Sites may contain links to other websites that we do not own or operate. We do not control, recommend or endorse the content, products, services, privacy policies or practices of these third party websites. For example, on Our Sites you will notice clickable icons which take you to the Zemanta Facebook page or the Zemanta LinkedIn page. If you choose to click on these links, you should know that Facebook and Linkedin may send their own cookies to your device and they may independently collect personal data. It is therefore important that you read the Facebook and/or LinkedIn privacy policies.
- Also see the Sharing section of this Privacy Policy.
(d) Your rights
The Terms of Service on Our Site govern the use of Our Site and also apply to you. You can stop using Our Site at any time. If you do, you may also want to remove any cookies that we have placed on any device used to access Our Site. If during your use of Our Sites you provided your email address, any email you receive from Zemanta includes an “unsubscribe” option.
For European Territory Visitors, Zemanta has implemented a consent management platform (powered by One Trust) on Our Sites that provide visitors the opportunity to consent, or not consent, to cookies and similar tracking technologies on Our Sites. Upon accessing Our Sites, you will see a banner on the bottom of the page with information about the cookies we use. You may click the banner to reject any cookies that are not strictly necessary. Pressing “accept” on the banner or scrolling/clicking on Our Sites is an indication of your acceptance. Accordingly, Zemanta’s lawful basis for processing personal data on Our Sites is consent. You may withdraw your consent at any time here.
Business Partners: You are a Business Partner when you register (or email with Zemanta) on behalf of the company you work for to use the Zemanta Services. See more here.
(a) What information we collect and why
You may provide certain personal data (such as email address) when you sign up for the Zemanta Services or otherwise communicate or interact with us. If you apply to become a Business Partner, we may request additional information from you via advertiser application forms, insertion orders and other forms. We automatically collect information about your username’s actions in the Zemanta dashboard.
We collect and process the personal data above in order to perform our obligations under our agreement as a Business Partner (or prospective Business Partner) with you including to:
- respond to your questions and requests;
- to provide you with access to certain functions and features of our Zemanta services (e.g., to provide and maintain your dashboard account);
- verify your identity;
- communicate with you about your account, our products, and available promotions relevant to your use of the Zemanta services.
(b) What cookies and other similar technologies we use
Please see this Cookie Table under “Business Partners” for a detailed list of the cookies (and their corresponding retention periods) we use with Business Partners.
(c) How we may share information with anyone
We may disclose certain Business Partner information to vendors, contractors, or others who assist the Zemanta in delivering the services (e.g., credit card processing). Also see the Sharing section of this Privacy Policy.
(d) Your rights
If as a Business Partner you wish to verify, correct, update or request the deactivation of your information, you may go the to the Zemanta dashboard edit your profile preferences or contact us at [email protected]com. If you are receiving Zemanta emails, you may “unsubscribe” using a link in the email. Note unsubscribing shall not opt you out notifications critical to providing the Zemanta services (e.g., email invoices).
Zemanta’s lawful basis for processing personal data of Business Partners is legitimate interest.
Zemanta Users: You are a Zemanta User when you visit a page of a website or application where Zemanta’s technology is used to serve advertisements advertisements (“Zemanta One”). See more here.
(a) What Information we collect and why
We automatically collect the information listed below through tracking technologies such as cookies, pixel tags, beacons, and embedded scripts. We may also infer or collect additional information about you based on what we or our partners collect. Information is shared in the process of Programmatic Buying via the Open RTB (see our Glossary for more information.) This information helps provide our services and serve you ads which are most relevant to your interests.
Information Type | Description |
Automatically collected information | Identifiers: Zemanta online identifier, (UUID) advertiser ID and IP address. The Zemanta UUID and / or advertiser ID a sequence of numbers and/or letters. This UUID attaches itself to your device and varies depending on which browser you use. In other words, Zemanta records a different UUID depending on which device and/or which browser you use when accessing publisher sites. For example, this means that you will have one UUID when you visit a site from your mobile phone using the browser Safari, and a different UUID when you visit a site from your iPad using the browser Safari. Zemanta will combine and consolidate a UUID from a mobile device (handheld or tablet) from a browser that then accesses an application (or vice versa) from that same device. |
Internet or other electronic network activity information |
|
Geological Information: |
|
(b) What cookies and other similar technologies we use.
- Cookies
Cookies are a short string of characters which Zemanta uses to uniquely identify browser and a device. Zemanta syncs these cookies with its partners in order to identify users across environments and know which segments our partners identify our users with. Please see this Cookie Table under “Zemanta Users” for a detailed list of the first party cookies Zemanta uses when you interact with sites where Zemanta One is used.
- Pixel Tags
Pixel tags are transparent images or short snippets of Javascript that Zemanta’s partners and clients use to understand how their users interact with their properties online, including websites and mobile apps.
Zemanta advertisers may implement the Zemanta pixel on their websites. The Zemanta pixel determines whether the user reaching the page where the pixel is installed has a Zemanta UUID. If there is a UUID associated with such end user, Zemanta allows advertisers to retarget those UUIDs and/or provides advertisers with the total number of UUIDs that reached such page. If there was no Zemanta UUID on the page, the Zemanta pixel does not collect any information about the user.
We encourage advertisers to disclose use of the Zemanta pixel on their own websites. Zemanta does not combine pixel information with a UUID’s profile.
- Mobile Advertising Identifiers
Mobile advertising IDs (like IDFA) are unique IDs associated with individual mobile devices. Users can reset them by instructing their device to do so.
- General Web Analytics
Zemanta integrates with its client and partner’s Web Analytics software in order to observe how users behave after clicking on ads. Any data collection via web analytics software is governed by such client’s and/or third party’s privacy policy.
- Zemanta Customer Technology
Zemanta’s clients and other third parties who use Zemanta services may use their own tags, pixels cookies or other technology (or those of their other affiliates) within their advertisements and on certain websites. In such cases you will be subject to their privacy policy.
(c) How we may share information
Zemanta may share some personal data (e.g., Zemanta UUID, device ID and IP address) with certain partners for the purpose of cookie syncing or based on technical requirements. Third parties may be able to ascertain you identity by using information we disclose to them in conjunction with other information they have.
Zemanta may share some personal data with the following categories of trusted third party:
- Supply side platform;
- Data management platform;
- Exchanges; and/or
- Ad networks.
For a more detailed description of the above categories please see our Glossary.
(d) Your rights
- Zemanta Opt-Out
You may opt out of Zemanta’s personalised recommendations at any time. Opting-out means that Zemanta will cease to collect data while you remain opted-out. You can opt out of personalisation on your desktop and mobile web here.
Note that opting out of personalised recommendations in applications is through the settings on your device (e.g., by following instructions for iOS devices and for Android devices.).
IMPORTANT – even though you have opted out of Zemanta:
- You will still see advertisements. Opting out of Zemanta tracking does not mean you will no longer receive advertisements. Instead, it means that the advertisements will not be interest-based or targeted based on your browser cookies.
- The opt out is cookie based and device/browser specific. If you browse the web from several devices and/or browsers, you will need to opt out from each device and/or browser to ensure that we prevent personalization tracking on all of them. For the same reason, if you buy a new device, change browsers or delete (or clear) the opt out cookie, you will need to opt-out again. Opting out of personalization tracking is not the same as blocking cookies.
- To ensure deletion of the profile tied to your UUID, do not opt in to Zemanta for at least 21 days. Your opt out is effective immediately. However, if your browser permits local storage and you opt into Zemanta’s personalized recommendations within 21 days of your opt out, it is possible your prior profile will be reconnected to your UUID. If you do not opt in within 21 days, your profile will be deleted and cannot be recovered.
- As with most opt out cookies, the Zemanta browser opt out relies upon a cookie. The opt-out cookie is intended to be persistent to honor the user’s preferences. However, the "Intelligent Tracking Prevention" feature in iOS11 may impact the persistence of cookies across websites post a 24 hour window. We suggest using another browser or considering blocking all 3rd party cookies from the browser so that you are "opted out" without needing to rely on any company's actual opt out methodology.
- Additional Opt-Out Options.
You may also opt out of receiving personalized ads served by us or other advertising companies through industry powered tools such as the NAI and/or EDAA www.youronlinechoices.eu). Visiting the NAI or EDAA consumer choice pages allows you to opt out of all some or all of the participating members’ services. Like Zemanta’s opt out, these opt outs do not mean you will no longer receive any advertising – the advertisements will just not be tailored to you. You may continue to receive advertisements, for example, based on the particular website that you are viewing (i.e., contextually based ads). Also, if your browsers are configured to reject cookies when you visit the EDAA consumer choice pages, your opt out may not be effective.
3. How We Keep Information Safe, Transfers Outside the EEA, Sharing and Retention
Security
Zemanta has a dedicated security team. We maintain tight controls over the personal data we collect, retaining it in firewalled and secured databases with strictly limited and controlled access rights, to ensure it is secure. We have taken appropriate technical and organisational measures to protect the Information we collect about you from loss, misuse, unauthorized access, disclosure, alteration, destruction, and any other form of unauthorized processing.
Business Partners have access to certain password-protected features of the Zemanta service. They are responsible for keeping this password confidential. Please remember that unfortunately, the transmission of information via the internet is not completely secure. A common Internet scam is known as "spoofing" or "phishing." This occurs when you receive an email from what appears to be a legitimate source requesting personal data from you. Please be aware that we will not send you any emails requesting you to verify credit card, bank information, or any other personal data. If you ever receive an email that appears to be from us requesting such information from you, do not respond to it, and do not click on any links appearing in the email. Instead, please forward the email to us at [email protected], as we will investigate instances of possible Internet fraud.
Data Transfers Outside the EU/EEA
When we transfer personal data from the European Economic Area to other countries in which applicable laws do not offer the same level of data privacy protection as in the European Territories, we take measures to provide an appropriate level of data privacy protection. In other words, your rights and protections remain with your data. For example, we use approved contractual clauses and other measures designed to ensure that the recipients of your personal data protect it.
Sharing
In addition to the description of how we may disclose your personal data for each user type, we may also disclose personal data as follows:
- Within the family of companies controlled by Outbrain Inc (Zemanta Inc’s parent company) for internal reasons, primarily for business and operational purposes;
- If we go through a business transition, such as a merger, acquisition by another company, or sale of all or a portion of our assets, your personal data will likely be among the assets transferred;
- When legally required to do so (e.g., to cooperate with law enforcement investigations or other legal proceedings); and/or
- To respond to a genuine emergency.
In addition, we combine your personal data with those of other users in order to share trend information and aggregate user statistics with third parties, always in aggregated and anonymized form.
Data Retention
The retention period for each of the cookies Zemanta uses (whether its own or on our behalf by third parties) is stated on the Cookie Table.
Zemanta also maintains a Data Retention Policy that details the retention period for personal data based on our analysis of how long the specific data is reasonably required for legal or business purposes. When we no longer need personal data, we securely delete or destroy it. Aggregated data, which cannot identify a device/browser (or individual) and is used for purposes of reporting and analysis, is maintained for as long as commercially necessary.
4. Children
None of our services are directed to children under 16. We do not knowingly collect personal data from anyone under 16 years of age. If we determine upon collection that a Site Visitor, a User or a Business Partner is under 16, we will not use or maintain his/her personal data. If we become aware that we have unknowingly collected personal data from a child under the age of 16, we will make reasonable efforts to delete such information from our records. If you’re a kid, please go play in the yard, don’t use or interact with Zemanta!
5. European Territory Citizens
In compliance with European privacy laws, in particular the European General Data Protection Regulation (GDPR), Zemanta provides specific additional rights for citizens of the European Territories such as the right to access, rectification, right to object, to complaint, erasure and blockage. More specifically:
- the right to request information about whether and which personal data is processed by us, and the right to demand that personal data is rectified or amended.
- under certain circumstances, the right to request that personal data should be deleted.
- under certain circumstances, the right to demand that the processing of personal data should be restricted.
- withdraw your consent to the processing and use of your data completely or partially at any time with future application.
- have the right to obtain your personal data in a common, structured and mechanically readable format.
- contact our data protection officer if there are any questions, comments, complaints or requests in connection with our statement on data protection and the processing of your personal data.
- the right to complain to the responsible supervisory authority if believed that the processing of your personal data is in violation of the legislation.
In addition to the above, we reference certain rights for European Territory citizens throughout this Privacy Policy. Pursuant to the GDPR, citizens from "European Territories" mean the European Economic Area (EEA) and Switzerland. For the purpose of this Privacy Policy, the term "European Territories" shall continue to include the United Kingdom, even after the United Kingdom leaves the European Economic Area following Brexit.
6. California Privacy Rights
- Your Rights
As a California resident, you have the rights listed below. However, these rights are not absolute, and in certain cases we may decline your request as permitted by law.
- Information. You can request the following information about how we have collected and used your Personal Information during the past 12 months:
- The categories of Personal Information that we have collected.
- The categories of sources from which we collected Personal Information.
- The business or commercial purpose for collecting and/or selling Personal Information.
- The categories of third parties with whom we share Personal Information.
- Whether we have disclosed your Personal Information for a business purpose, and if so, the categories of Personal Information received by each category of third party recipient.
- Whether we’ve sold your Personal Information, and if so, the categories of Personal Information received by each category of third party recipient.
- Access. You can request a copy of the Personal Information that we have collected about you during the past 12 months.
- Deletion. You can ask us to delete the Personal Information that we have collected from you.
- Opt-out of sales. If we sell your Personal Information, you can opt-out. In addition, if you direct us not to sell your Personal Information, we will consider it a request pursuant to California’s “Shine the Light” law to stop sharing your personal information covered by that law with third parties for their direct marketing purposes.
- Opt-in. We contractually prohibit our publishing and advertising clients from placing our technology on pages that target individuals younger than 16 years old. If we learn that you are younger than 16 years old, we will ask for your permission (or if you are younger than 13 years old, your parent or guardian’s permission) to sell your Personal Information before we do so.
- Nondiscrimination. You are entitled to exercise the rights described above free from discrimination. This means that we will not penalize you for exercising your rights by taking actions such as denying you services; increasing the price/rate of services; decreasing service quality; or suggesting that we may penalize you as described above for exercising your rights.
- How to exercise your rights. You may exercise your California privacy rights described above as follows:
- Right to information, access and deletion. You can request to exercise your information, access and deletion rights by:
- calling us toll free on 1-866-I-OPT-OUT and entering service code 253# to leave us a message.
- emailing [email protected].
- sending a request by mail to Zemanta Inc., mail to Zemanta Inc., 39 West 13th Street 3rd Floor New York, New York 10011, Attn: Privacy Questions
- Right to opt-out of the “sale” of your Personal Information. We do not sell your Personal Information in the conventional sense (i.e., for money). However, like many companies, we use services that help deliver interest-based ads to you. California law classifies our use of these services as a “sale” of your Personal Information to the companies that provide the services. This is because we allow them to collect information from our website users (e.g., online identifiers and browsing activity) so they can help serve ads more likely to interest you. To opt-out of this ” sale,” click on this link which will take you to our a page where you can opt out of personalised recommendations.
We will need to confirm your identity and California residency to process your requests to exercise your information, access or deletion rights. We cannot process your request if you do not provide us with sufficient detail to allow us to understand and respond to it.
- Personal information that we collect, use and share
The chart below summarizes how we collect, use and share Personal Information by reference to the statutory categories specified in the CCPA, and describes our practices during the 12 months preceding the effective date of this Privacy Policy. Categories in the chart refer to the categories described above in the general section of this Privacy Policy.
Zemanta User Type | Statutory category of personal information (PI) | Source of the PI | Purpose for collection | How we may share, disclose or “sell” information. |
Site Visitors | Identifiers Online Identifiers Geolocation Data Inferences Internet or Network Information | Site Visitor | See Section 2(a) (Site Visitors). | See Section 2(c) (Site Visitors). |
Users | Identifiers Online Identifiers Geolocation Data Inferences Internet or Network Information | Users | See Section 2(a) (Users). | See Section 2(c) (Users). |
Business Partners | Identifiers Financial Information | Business Partners | See Section 2(a) (Business Partners). | See Section 2(c) (Business Partners). |
7. “Do Not Track” Disclosure
Some browsers transmit Do Not Track (DNT) signals to websites. Because there is no common understanding of how to interpret the DNT signal, Zemanta does not currently alter, change, or respond to DNT requests or signals from these browsers. We will continue to monitor industry activity in this area and reassess our DNT practices as necessary. In the meantime, you can use the range of other tools we provide to control data collection and use, including the ability to opt out of receiving personalized recommendations in the Users section.
8. How This Privacy Policy May Change
We may change this Privacy Policy from time to time. We will place a prominent notice that will be visible to you as a Site Visitor or Business Partner, but we do not have a means of advising Users of an update. You should check back here periodically to see if the Privacy Policy has been updated. We will always show the date of the latest modification of the Privacy Policy at the top of the page so you can tell when it was last revised.
Effective April 30, 2020 to April 30, 2020
DownloadTable of Contents
Zemanta Privacy Policy
Zemanta is committed to protecting your personal data. This privacy policy (“Privacy Policy”) governs Zemanta’s use of data collected by us, including any and all personal data. Personal data is information that relates to you and may identify you as an individual. We use your personal data in line with all applicable laws. In addition to the information contained herein, we have created a Glossary of Terms to help you navigate this Privacy Policy.
1. Who we are, What we do, How you can contact Zemanta, our DPO or the relevant authorities
Who we are:
Zemanta means Zemanta Inc., a Delaware, USA corporation with headquarters in New York; and its affiliated subsidiaries (collectively, “Zemanta,” or “we“, “us“, “our“).
What we do:
How to contact us:
We regularly review our compliance with this Privacy Policy. Questions, comments and requests regarding this Privacy Policy are welcomed and should be addressed to [email protected] or by mail to Zemanta Inc., 33 West 13thStreet 3rd Floor, New York New York 10011, Attn: Privacy Questions.
If Zemanta does not satisfactorily answers your questions or concerns, you may also contact the following for advice, support or complaints:
- Zemanta’s external Data Protection Officer (“DPO”): ePrivacy GmbH, represented by Prof. Dr. Christoph Bauer. ePrivacy GmbH can be reached directly at [email protected]; and/or
- the Information Commissioner’s Officer, which is Zemanta’s lead supervisory service within the European Territories.
Self-Regulatory Bodies
We adhere to:
- the Self-Regulatory Principles set forth by the Digital Advertising Alliance (DAA) and the European Interactive Digital Advertising Alliance (EDAA);
- the NAI Code of Conduct for Web and Mobile;
- the Interactive Advertising Bureau’s (IAB) Self-Regulatory Principles for Online Behavioral Advertising; and
- the IAB Europe OBA Framework.
2. Zemanta User Types (including Opt Out Options)
Much of this Privacy Policy is divided into sections based on the way you may interact with Zemanta. Please determine what user type you are. For each user type we’ve explained what information we collect and why, what cookies and other similar technologies we use, how we share such information, and your rights.
Site Visitors: You are a Site Visitor when you visit and interact with our web sites, web pages, interactive features, blogs and their respective contents at Zemanta.com (or any derivation, such as Zemanta.co.uk; Zemanta.fr; Zemanta.de etc.). See more here.
(a) What information we collect and why
We want to understand what services on Our Sites interest you and we want to remind you about the services we offer when you are not on Our Sites. To do this, we collect the following information from you: (i) IP address; (ii) User Agent data: device type (e.g., iPhone), browser type (e.g., Chrome), operating system (e.g., iOS); (iii) the pages visited on Our Site (e.g., the Zemanta “About” page); (iv) the time of visit (and corresponding timezone); and (v) referring URLs and other information normally transmitted in HTTP requests (e.g., this information tells us how you arrived on Our Sites).
(b) What cookies and other similar technologies we use
Please see this Cookie Table under “Site Visitors” for a detailed list of the cookies (and their corresponding retention periods) we use when you visit Our Sites.
(c) How we may share information
- Sharing Information we learn about you on Our Sites.
In general, we do not share personal data about you with third parties for third party marketing or advertising purposes. However, we use various third parties (each listed on this Cookie Table) to help us market or advertise to you. For example, some of the cookies we use on Our Sites belong to third parties that will help Zemanta market or advertise to you. We require that these third parties and companies agree to keep all information shared with them confidential and to use the information only to perform their obligations to us. We do this by entering into agreements with all third parties who process personal data on our behalf to ensure that they process your personal data in accordance with our strict instructions and all applicable data protection laws.
Using Third Party Services on Our Sites.
Our Sites may contain links to other websites that we do not own or operate. We do not control, recommend or endorse the content, products, services, privacy policies or practices of these third party websites. For example, on Our Sites you will notice clickable icons which take you to the Zemanta Facebook page or the Zemanta LinkedIn page. If you choose to click on these links, you should know that Facebook and Linkedin may send their own cookies to your device and they may independently collect personal data. It is therefore important that you read the Facebook and/or LinkedIn privacy policies.
- Also see the Sharing section of this Privacy Policy.
(d) Your rights
The Terms of Service on Our Site govern the use of Our Site and also apply to you. You can stop using Our Site at any time. If you do, you may also want to remove any cookies that we have placed on any device used to access Our Site. If during your use of Our Sites you provided your email address, any email you receive from Zemanta includes an “unsubscribe” option.
For European Territory Visitors, Zemanta has implemented a consent management platform (powered by One Trust) on Our Sites that provide visitors the opportunity to consent, or not consent, to cookies and similar tracking technologies on Our Sites. Upon accessing Our Sites, you will see a banner on the bottom of the page with information about the cookies we use. You may click the banner to reject any cookies that are not strictly necessary. Pressing “accept” on the banner or scrolling/clicking on Our Sites is an indication of your acceptance. Accordingly, Zemanta’s lawful basis for processing personal data on Our Sites is consent. You may withdraw your consent at any time here.
Business Partners: You are a Business Partner when you register (or email with Zemanta) on behalf of the company you work for to use the Zemanta Services. See more here.
(a) What information we collect and why
You may provide certain personal data (such as email address) when you sign up for the Zemanta Services or otherwise communicate or interact with us. If you apply to become a Business Partner, we may request additional information from you via advertiser application forms, insertion orders and other forms. We automatically collect information about your username’s actions in the Zemanta dashboard.
We collect and process the personal data above in order to perform our obligations under our agreement as a Business Partner (or prospective Business Partner) with you including to:
- respond to your questions and requests;
- to provide you with access to certain functions and features of our Zemanta services (e.g., to provide and maintain your dashboard account);
- verify your identity;
- communicate with you about your account, our products, and available promotions relevant to your use of the Zemanta services.
(b) What cookies and other similar technologies we use
Please see this Cookie Table under “Business Partners” for a detailed list of the cookies (and their corresponding retention periods) we use with Business Partners.
(c) How we may share information with anyone
We may disclose certain Business Partner information to vendors, contractors, or others who assist the Zemanta in delivering the services (e.g., credit card processing). Also see the Sharing section of this Privacy Policy.
(d) Your rights
If as a Business Partner you wish to verify, correct, update or request the deactivation of your information, you may go the to the Zemanta dashboard edit your profile preferences or contact us at [email protected]. If you are receiving Zemanta emails, you may “unsubscribe” using a link in the email. Note unsubscribing shall not opt you out notifications critical to providing the Zemanta services (e.g., email invoices).
Zemanta’s lawful basis for processing personal data of Business Partners is legitimate interest.
Zemanta Users: You are a Zemanta User when you visit a page of a website or application where Zemanta’s technology is used to serve advertisements advertisements (“Zemanta One”). See more here.
(a) What Information we collect and why
We automatically collect the information listed below through tracking technologies such as cookies, pixel tags, beacons, and embedded scripts. We may also infer or collect additional information about you based on what we or our partners collect. Information is shared in the process of Programmatic Buying via the Open RTB (see our Glossary for more information.) This information helps provide our services and serve you ads which are most relevant to your interests.
Information Type | Description |
Automatically collected information | Identifiers: Zemanta online identifier, (UUID) advertiser ID and IP address. The Zemanta UUID and / or advertiser ID a sequence of numbers and/or letters. This UUID attaches itself to your device and varies depending on which browser you use. In other words, Zemanta records a different UUID depending on which device and/or which browser you use when accessing publisher sites. For example, this means that you will have one UUID when you visit a site from your mobile phone using the browser Safari, and a different UUID when you visit a site from your iPad using the browser Safari. Zemanta will combine and consolidate a UUID from a mobile device (handheld or tablet) from a browser that then accesses an application (or vice versa) from that same device. |
Internet or other electronic network activity information |
|
Geological Information: |
|
(b) What cookies and other similar technologies we use.
- Cookies
Cookies are a short string of characters which Zemanta uses to uniquely identify browser and a device. Zemanta syncs these cookies with its partners in order to identify users across environments and know which segments our partners identify our users with. Please see this Cookie Table under “Zemanta Users” for a detailed list of the first party cookies Zemanta uses when you interact with sites where Zemanta One is used.
- Pixel Tags
Pixel tags are transparent images or short snippets of Javascript that Zemanta’s partners and clients use to understand how their users interact with their properties online, including websites and mobile apps.
Zemanta advertisers may implement the Zemanta pixel on their websites. The Zemanta pixel determines whether the user reaching the page where the pixel is installed has a Zemanta UUID. If there is a UUID associated with such end user, Zemanta allows advertisers to retarget those UUIDs and/or provides advertisers with the total number of UUIDs that reached such page. If there was no Zemanta UUID on the page, the Zemanta pixel does not collect any information about the user.
We encourage advertisers to disclose use of the Zemanta pixel on their own websites. Zemanta does not combine pixel information with a UUID’s profile.
- Mobile Advertising Identifiers
Mobile advertising IDs (like IDFA) are unique IDs associated with individual mobile devices. Users can reset them by instructing their device to do so.
- General Web Analytics
Zemanta integrates with its client and partner’s Web Analytics software in order to observe how users behave after clicking on ads. Any data collection via web analytics software is governed by such client’s and/or third party’s privacy policy.
- Zemanta Customer Technology
Zemanta’s clients and other third parties who use Zemanta services may use their own tags, pixels cookies or other technology (or those of their other affiliates) within their advertisements and on certain websites. In such cases you will be subject to their privacy policy.
(c) How we may share information
Zemanta may share some personal data (e.g., Zemanta UUID, device ID and IP address) with certain partners for the purpose of cookie syncing or based on technical requirements. Third parties may be able to ascertain you identity by using information we disclose to them in conjunction with other information they have.
Zemanta may share some personal data with the following categories of trusted third party:
- Supply side platform;
- Data management platform;
- Exchanges; and/or
- Ad networks.
For a more detailed description of the above categories please see our Glossary.
(d) Your rights
- Zemanta Opt-Out
You may opt out of Zemanta’s personalised recommendations at any time. Opting-out means that Zemanta will cease to collect data while you remain opted-out. You can opt out of personalisation on your desktop and mobile web here.
Note that opting out of personalised recommendations in applications is through the settings on your device (e.g., by following instructions for iOS devices and for Android devices.).
IMPORTANT – even though you have opted out of Zemanta:
- You will still see advertisements. Opting out of Zemanta tracking does not mean you will no longer receive advertisements. Instead, it means that the advertisements will not be interest-based or targeted based on your browser cookies.
- The opt out is cookie based and device/browser specific. If you browse the web from several devices and/or browsers, you will need to opt out from each device and/or browser to ensure that we prevent personalization tracking on all of them. For the same reason, if you buy a new device, change browsers or delete (or clear) the opt out cookie, you will need to opt-out again. Opting out of personalization tracking is not the same as blocking cookies.
- To ensure deletion of the profile tied to your UUID, do not opt in to Zemanta for at least 21 days. Your opt out is effective immediately. However, if your browser permits local storage and you opt into Zemanta’s personalized recommendations within 21 days of your opt out, it is possible your prior profile will be reconnected to your UUID. If you do not opt in within 21 days, your profile will be deleted and cannot be recovered.
- As with most opt out cookies, the Zemanta browser opt out relies upon a cookie. The opt-out cookie is intended to be persistent to honor the user’s preferences. However, the "Intelligent Tracking Prevention" feature in iOS11 may impact the persistence of cookies across websites post a 24 hour window. We suggest using another browser or considering blocking all 3rd party cookies from the browser so that you are "opted out" without needing to rely on any company's actual opt out methodology.
- Additional Opt-Out Options.
You may also opt out of receiving personalized ads served by us or other advertising companies through industry powered tools such as the NAI and/or EDAA www.youronlinechoices.eu). Visiting the NAI or EDAA consumer choice pages allows you to opt out of all some or all of the participating members’ services. Like Zemanta’s opt out, these opt outs do not mean you will no longer receive any advertising – the advertisements will just not be tailored to you. You may continue to receive advertisements, for example, based on the particular website that you are viewing (i.e., contextually based ads). Also, if your browsers are configured to reject cookies when you visit the EDAA consumer choice pages, your opt out may not be effective.
3. How We Keep Information Safe, Transfers Outside the EEA, Sharing and Retention
Security
Zemanta has a dedicated security team. We maintain tight controls over the personal data we collect, retaining it in firewalled and secured databases with strictly limited and controlled access rights, to ensure it is secure. We have taken appropriate technical and organisational measures to protect the Information we collect about you from loss, misuse, unauthorized access, disclosure, alteration, destruction, and any other form of unauthorized processing.
Business Partners have access to certain password-protected features of the Zemanta service. They are responsible for keeping this password confidential. Please remember that unfortunately, the transmission of information via the internet is not completely secure. A common Internet scam is known as "spoofing" or "phishing." This occurs when you receive an email from what appears to be a legitimate source requesting personal data from you. Please be aware that we will not send you any emails requesting you to verify credit card, bank information, or any other personal data. If you ever receive an email that appears to be from us requesting such information from you, do not respond to it, and do not click on any links appearing in the email. Instead, please forward the email to us at [email protected], as we will investigate instances of possible Internet fraud.
Data Transfers Outside the EU/EEA
When we transfer personal data from the European Economic Area to other countries in which applicable laws do not offer the same level of data privacy protection as in the European Territories, we take measures to provide an appropriate level of data privacy protection. In other words, your rights and protections remain with your data. For example, we use approved contractual clauses and other measures designed to ensure that the recipients of your personal data protect it.
Sharing
In addition to the description of how we may disclose your personal data for each user type, we may also disclose personal data as follows:
- Within the family of companies controlled by Outbrain Inc (Zemanta Inc’s parent company) for internal reasons, primarily for business and operational purposes;
- If we go through a business transition, such as a merger, acquisition by another company, or sale of all or a portion of our assets, your personal data will likely be among the assets transferred;
- When legally required to do so (e.g., to cooperate with law enforcement investigations or other legal proceedings); and/or
- To respond to a genuine emergency.
In addition, we combine your personal data with those of other users in order to share trend information and aggregate user statistics with third parties, always in aggregated and anonymized form.
Data Retention
The retention period for each of the cookies Zemanta uses (whether its own or on our behalf by third parties) is stated on the Cookie Table.
Zemanta also maintains a Data Retention Policy that details the retention period for personal data based on our analysis of how long the specific data is reasonably required for legal or business purposes. When we no longer need personal data, we securely delete or destroy it. Aggregated data, which cannot identify a device/browser (or individual) and is used for purposes of reporting and analysis, is maintained for as long as commercially necessary.
4. Children
None of our services are directed to children under 16. We do not knowingly collect personal data from anyone under 16 years of age. If we determine upon collection that a Site Visitor, a User or a Business Partner is under 16, we will not use or maintain his/her personal data. If we become aware that we have unknowingly collected personal data from a child under the age of 16, we will make reasonable efforts to delete such information from our records. If you’re a kid, please go play in the yard, don’t use or interact with Zemanta!
5. European Territory Citizens
In compliance with European privacy laws, in particular the European General Data Protection Regulation (GDPR), Zemanta provides specific additional rights for citizens of the European Territories such as the right to access, rectification, right to object, to complaint, erasure and blockage. More specifically:
- the right to request information about whether and which personal data is processed by us, and the right to demand that personal data is rectified or amended.
- under certain circumstances, the right to request that personal data should be deleted.
- under certain circumstances, the right to demand that the processing of personal data should be restricted.
- withdraw your consent to the processing and use of your data completely or partially at any time with future application.
- have the right to obtain your personal data in a common, structured and mechanically readable format.
- contact our data protection officer if there are any questions, comments, complaints or requests in connection with our statement on data protection and the processing of your personal data.
- the right to complain to the responsible supervisory authority if believed that the processing of your personal data is in violation of the legislation.
In addition to the above, we reference certain rights for European Territory citizens throughout this Privacy Policy. Pursuant to the GDPR, citizens from "European Territories" mean the European Economic Area (EEA) and Switzerland. For the purpose of this Privacy Policy, the term "European Territories" shall continue to include the United Kingdom, even after the United Kingdom leaves the European Economic Area following Brexit.
6. California Privacy Rights
- Your Rights
As a California resident, you have the rights listed below. However, these rights are not absolute, and in certain cases we may decline your request as permitted by law.
- Information. You can request the following information about how we have collected and used your Personal Information during the past 12 months:
- The categories of Personal Information that we have collected.
- The categories of sources from which we collected Personal Information.
- The business or commercial purpose for collecting and/or selling Personal Information.
- The categories of third parties with whom we share Personal Information.
- Whether we have disclosed your Personal Information for a business purpose, and if so, the categories of Personal Information received by each category of third party recipient.
- Whether we’ve sold your Personal Information, and if so, the categories of Personal Information received by each category of third party recipient.
- Access. You can request a copy of the Personal Information that we have collected about you during the past 12 months.
- Deletion. You can ask us to delete the Personal Information that we have collected from you.
- Opt-out of sales. If we sell your Personal Information, you can opt-out. In addition, if you direct us not to sell your Personal Information, we will consider it a request pursuant to California’s “Shine the Light” law to stop sharing your personal information covered by that law with third parties for their direct marketing purposes.
- Opt-in. We contractually prohibit our publishing and advertising clients from placing our technology on pages that target individuals younger than 16 years old. If we learn that you are younger than 16 years old, we will ask for your permission (or if you are younger than 13 years old, your parent or guardian’s permission) to sell your Personal Information before we do so.
- Nondiscrimination. You are entitled to exercise the rights described above free from discrimination. This means that we will not penalize you for exercising your rights by taking actions such as denying you services; increasing the price/rate of services; decreasing service quality; or suggesting that we may penalize you as described above for exercising your rights.
- How to exercise your rights. You may exercise your California privacy rights described above as follows:
- Right to information, access and deletion. You can request to exercise your information, access and deletion rights by:
- calling us toll free on 1-866-I-OPT-OUT and entering service code 253# to leave us a message.
- emailing [email protected].
- sending a request by mail to Zemanta Inc., mail to Zemanta Inc., 39 West 13th Street 3rd Floor New York, New York 10011, Attn: Privacy Questions
- Right to opt-out of the “sale” of your Personal Information. We do not sell your Personal Information in the conventional sense (i.e., for money). However, like many companies, we use services that help deliver interest-based ads to you. California law classifies our use of these services as a “sale” of your Personal Information to the companies that provide the services. This is because we allow them to collect information from our website users (e.g., online identifiers and browsing activity) so they can help serve ads more likely to interest you. To opt-out of this ” sale,” click on this link which will take you to our a page where you can opt out of personalised recommendations.
We will need to confirm your identity and California residency to process your requests to exercise your information, access or deletion rights. We cannot process your request if you do not provide us with sufficient detail to allow us to understand and respond to it.
- Personal information that we collect, use and share
The chart below summarizes how we collect, use and share Personal Information by reference to the statutory categories specified in the CCPA, and describes our practices during the 12 months preceding the effective date of this Privacy Policy. Categories in the chart refer to the categories described above in the general section of this Privacy Policy.
Zemanta User Type | Statutory category of personal information (PI) | Source of the PI | Purpose for collection | How we may share, disclose or “sell” information. |
Site Visitors | Identifiers Online Identifiers Geolocation Data Inferences Internet or Network Information | Site Visitor | See Section 2(a) (Site Visitors). | See Section 2(c) (Site Visitors). |
Users | Identifiers Online Identifiers Geolocation Data Inferences Internet or Network Information | Users | See Section 2(a) (Users). | See Section 2(c) (Users). |
Business Partners | Identifiers Financial Information | Business Partners | See Section 2(a) (Business Partners). | See Section 2(c) (Business Partners). |
7. “Do Not Track” Disclosure
Some browsers transmit Do Not Track (DNT) signals to websites. Because there is no common understanding of how to interpret the DNT signal, Zemanta does not currently alter, change, or respond to DNT requests or signals from these browsers. We will continue to monitor industry activity in this area and reassess our DNT practices as necessary. In the meantime, you can use the range of other tools we provide to control data collection and use, including the ability to opt out of receiving personalized recommendations in the Users section.
8. How This Privacy Policy May Change
We may change this Privacy Policy from time to time. We will place a prominent notice that will be visible to you as a Site Visitor or Business Partner, but we do not have a means of advising Users of an update. You should check back here periodically to see if the Privacy Policy has been updated. We will always show the date of the latest modification of the Privacy Policy at the top of the page so you can tell when it was last revised.
Effective January 29, 2020 to April 30, 2020
DownloadTable of Contents
Privacy policy
Effective as of May 25, 2018
Introduction
Protecting your privacy and right to choice is a top priority for Zemanta. Zemanta is a global provider of advertising technology to advertisers and agencies. This privacy policy explains Zemanta’s collection and use of data on websites where Zemanta’s proprietary Zemanta DSP technology is used to purchase ads (also known as “Zemanta One”). This privacy policy does not govern the collection and use of data on Zemanta’s corporate web site (https://www.zemanta.com). That data is governed by the section “Site Visitors”, found at https://www.outbrain.com/legal/privacy#privacy-policy, which is operated by Zemanta’s parent company, Outbrain Inc.
Zemanta is a member of IAB (Interactive Advertising Bureau) and adheres to its policies around online consumer privacy. While not a member, Zemanta adheres to Network Advertising Initiative Code of Conduct self-regulatory principles.
Information We Collect Through Our Technology
When you visit a website or application that uses the Zemanta One platform for targeted ads, we collect certain information about you and your device to help optimize ads and increase the likelihood that will be interested in an ad shown. Some of this information, including for example, your IP addresses and certain unique device identifiers, may identify a particular computer or device, and may be considered “personal data” in some jurisdictions in the European Union and elsewhere.
When you visit a website or application that uses the Zemanta One platform for targeted ads, we collect certain information about you and your device to help optimize ads and increase the likelihood that will be interested in an ad shown. Some of this information, including for example, your IP addresses and certain unique device identifiers, may identify a particular computer or device, and may be considered “personal data” in some jurisdictions in the European Union and elsewhere.
Information that we may collect includes: IP address, domain, browser type and language, referring website addresses, date/time of visits, page view data, search keywords, your activities and actions on publisher’s sites, browser history, Internet service provider, referring/exit pages, platform type, date/time stamp, geolocation (including city, country, zip code, and geographic coordinates, if you have enabled location services on your device), click data, types of advertisements viewed, and information about your device including device make, device model, device operating system, device operating system version, and data connection type. We do not collect any “sensitive personal data” as defined under European data protection laws.
We may also collect information about our partners’ interactions with you—for example, by placing pixels on an advertiser’s webpage so we can know if you ultimately purchased an item after viewing an advertisement bought through our platform or by integrating with the partners’ web analytics software, so we can know how long and where you engaged on their site. We may partner with other companies that are permitted to share anonymous information with us in order to enhance audience profiles. For example, we may partner with companies to learn the kinds of products you buy or express interest in.
How we collect information
We collect information in industry standard ways, including:
We collect information in industry standard ways, including:
Cookies – Cookies are short strings of characters. Zemanta uses cookies to uniquely identify an internet browser and in turn a device. We sync those cookies with our partners, so we can identify users across environments and know which segments our partners identify them with. For more information about cookies, visit http://www.allaboutcookies.org/.
Pixel Tags – Pixel tags are transparent images or short snippets of Javascript that our partners and clients use to understand how their users interact with their properties online, including websites and mobile apps.
Mobile Advertising Identifiers – Mobile advertising IDs (like IDFA) are unique, non PII IDs associated with individual mobile devices. Users can reset them by instructing their device to do so.
General Web Analytics – We integrate with Web Analytics software of our clients and partners in order to observe how users behave after clicking on ads. We do not control how third party Web Analytics software collects the data as this is defined by its own privacy policy.
How we use the information we collect
We primarily use the information we collect to enable our partners and clients to buy appropriate advertising space across the Zemanta One platform, which allows buying advertisements on the web and in desktop and mobile apps.
We primarily use the information we collect to enable our partners and clients to buy appropriate advertising space across the Zemanta One platform, which allows buying advertisements on the web and in desktop and mobile apps.
This information is used to target ads to consumers on behalf of our advertisers. This means displaying ads that might be of interest to consumers sharing certain traits. In some cases, our data is used in conjunction with the information advertisers have collected themselves (for example by bringing their CRM data into Zemanta One platform). This information is also used to appropriately price the ads on behalf of our advertisers.
Zemanta and its third-party partners may disclose links to or the entirety of articles you read, and in connection therewith, you waive any rights you may have under the California Reader Privacy Protection Act, the United States Video Privacy Protection Act, and any similar federal, state, local, or foreign law. Third parties may be able to ascertain your identity by using information we disclose to them in anonymized form in conjunction with other information they may have.
Data retention
Data retention
Cookies that are used to identify browsers expire after one year or less on a user’s machine. Likewise, data Zemanta One platform retains about those identifiers is retained for 90 days. Log level data of served ads, such as IP address and date an ad is served may be retained indefinitely.
Zemanta also maintains a Data Retention Policy that details the retention period for personal data based on our analysis of how long the specific data is reasonably required for legal or business purposes. When we no longer need personal data, we securely delete or destroy it. Aggregated data, which cannot identify a device/browser (or individual) and is used for purposes of reporting and analysis, is maintained for as long as commercially necessary.
Consumer Choice: Opt-Out
Opt out means you inform Zemanta One platform that you wish Zemanta to delete the data it holds about your browser and cease collecting data while you remain opted-out (which means a non-unique opt-out cookie is set in your browser).
Opt out means you inform Zemanta One platform that you wish Zemanta to delete the data it holds about your browser and cease collecting data while you remain opted-out (which means a non-unique opt-out cookie is set in your browser).
In practice, this means Zemanta One platform will not have and therefore will not be able to use any information specific to your browser to deliver targeted ads to you.
Please note that you will still see ads if you opt out, they just won’t be interest-based or otherwise targeted based on your browser’s cookie.
You can opt out on this page: https://www.zemanta.com/opt-out
Additionally, you can reset your Mobile Advertising Identifiers on your mobile device by following instructions for iOS devices and for Android Devices.
Information Our Customers Collect
Our customers and other third parties who use our technology may use their own tags, pixels, cookies, or other similar technology (or those of their other affiliates) within their advertisements and on certain websites. These customers maintain their own privacy policies and processes. We are not responsible for the privacy practices of customers that use our technology.
Our customers and other third parties who use our technology may use their own tags, pixels, cookies, or other similar technology (or those of their other affiliates) within their advertisements and on certain websites. These customers maintain their own privacy policies and processes. We are not responsible for the privacy practices of customers that use our technology.
Children
None of our services are directed to children under 16. We do not knowingly collect personal data from anyone under 16 years of age. If we determine upon collection that you are under 16, we will not use or maintain your personal data. If we become aware that we have unknowingly collected personal data from a child under the age of 16, we will make reasonable efforts to delete such information from our records. If you’re a kid, please go play in the yard, don’t use or interact with Zemanta!
None of our services are directed to children under 16. We do not knowingly collect personal data from anyone under 16 years of age. If we determine upon collection that you are under 16, we will not use or maintain your personal data. If we become aware that we have unknowingly collected personal data from a child under the age of 16, we will make reasonable efforts to delete such information from our records. If you’re a kid, please go play in the yard, don’t use or interact with Zemanta!
European Territory Citizens
In compliance with European privacy laws, in particular, the European General Data Protection Regulation (GDPR), Zemanta provides specific additional rights for citizens of the European Territories such as the right to access, rectification, right to object, to complaint, erasure and blockage. More specifically:
In compliance with European privacy laws, in particular, the European General Data Protection Regulation (GDPR), Zemanta provides specific additional rights for citizens of the European Territories such as the right to access, rectification, right to object, to complaint, erasure and blockage. More specifically:
- The right to request information about whether and which personal data is processed by our company, and the right to demand that personal data is rectified or amended.
- Under certain circumstances, the right to request that personal data should be deleted.
- Under certain circumstances, the right to demand that the processing of personal data should be restricted.
- Withdraw your consent to the processing and use of your data completely or partially at any time with future application.
have the right to obtain your personal data in a common, structured and mechanically readable format. - Contact your data protection officer if there are any questions, comments, complaints or requests in connection with our statement on data protection and the processing of your personal data.
- The right to complain to the responsible supervisory authority if believed that the processing of your personal data is in violation of the legislation.
In addition to the above, we reference certain rights for European Territory citizens throughout this Privacy Policy. Pursuant to the GDPR, citizens from “European Territories” mean the European Economic Area (EEA) and Switzerland. For the purpose of this Privacy Policy, the term “European Territories” shall continue to include the United Kingdom, even after the United Kingdom leaves the European Economic Area following Brexit.
California Privacy Rights
Under California Civil Code sections 1798.83-1798.84, California residents are entitled to ask us for a notice describing what categories of personal information we share with third parties or corporate affiliates for those third parties or corporate affiliates’ direct marketing purposes. That notice will identify the categories of information shared and will include a list of the third parties and affiliates with which it was shared, along with their names and addresses. If you are a California resident and would like a copy of this notice, please submit a written request to [email protected] or send to the following address: Zemanta Inc., 39 West 13th Street, 3rd floor, New York, NY 10011. Please allow 30 days for a response.
Under California Civil Code sections 1798.83-1798.84, California residents are entitled to ask us for a notice describing what categories of personal information we share with third parties or corporate affiliates for those third parties or corporate affiliates’ direct marketing purposes. That notice will identify the categories of information shared and will include a list of the third parties and affiliates with which it was shared, along with their names and addresses. If you are a California resident and would like a copy of this notice, please submit a written request to [email protected] or send to the following address: Zemanta Inc., 39 West 13th Street, 3rd floor, New York, NY 10011. Please allow 30 days for a response.
“Do Not Track” Disclosure
Some browsers transmit Do Not Track (DNT) signals to websites. Because there is no common understanding of how to interpret the DNT signal, Zemanta does not currently alter, change, or respond to DNT requests or signals from these browsers. We will continue to monitor industry activity in this area and reassess our DNT practices as necessary. In the meantime, you can use the range of other tools we provide to control data collection and use, including the ability to opt out in the Consumer Choice: Opt-Out section.
Some browsers transmit Do Not Track (DNT) signals to websites. Because there is no common understanding of how to interpret the DNT signal, Zemanta does not currently alter, change, or respond to DNT requests or signals from these browsers. We will continue to monitor industry activity in this area and reassess our DNT practices as necessary. In the meantime, you can use the range of other tools we provide to control data collection and use, including the ability to opt out in the Consumer Choice: Opt-Out section.
Changes to this privacy policy
Zemanta may update this privacy policy at any time (on a prospective basis). When we do, we will post an updated version here, and indicate the date of revision at the top of this page. We may, but are not required to, give you notice through other means. We encourage you to frequently check this page for any changes to stay informed about how we are helping to protect the information we collect.
Zemanta may update this privacy policy at any time (on a prospective basis). When we do, we will post an updated version here, and indicate the date of revision at the top of this page. We may, but are not required to, give you notice through other means. We encourage you to frequently check this page for any changes to stay informed about how we are helping to protect the information we collect.
Contact Us
If you have any questions about this Privacy Policy, the practices of this site, or your dealings with this site, please contact us at:
If you have any questions about this Privacy Policy, the practices of this site, or your dealings with this site, please contact us at:
Zemanta Inc. 39 West 13th Street 3rd floor, 10011 New York, NY
If we do not satisfactorily answer your questions or concerns, you may also contact the following for advice, support or complaints:
- Our external Data Protection Officer (“DPO”): ePrivacy GmbH, represented by Prof. Dr. Christoph Bauer. ePrivacy GmbH can be reached directly at [email protected]; and/or
- The Information Commissioner’s Officer, which is our lead supervisory service within the European Territories.
Effective January 23, 2019 to January 29, 2020
DownloadTable of Contents
Privacy policy
Effective as of May 25, 2018
Introduction
Protecting your privacy and right to choice is a top priority for Zemanta. Zemanta is a global provider of advertising technology to advertisers and agencies. This privacy policy explains Zemanta’s collection and use of data on websites where Zemanta’s proprietary Zemanta DSP technology is used to purchase ads (also known as “Zemanta One”). This privacy policy does not govern the collection and use of data on Zemanta’s corporate web site (https://www.zemanta.com). That data is governed by the section “Site Visitors”, found at https://www.outbrain.com/legal/privacy#privacy-policy, which is operated by Zemanta’s parent company, Outbrain Inc.
Zemanta is a member of IAB (Interactive Advertising Bureau) and adheres to its policies around online consumer privacy. While not a member, Zemanta adheres to Network Advertising Initiative Code of Conduct self-regulatory principles.
Information We Collect Through Our Technology
When you visit a website or application that uses the Zemanta One platform for targeted ads, we collect certain information about you and your device to help optimize ads and increase the likelihood that will be interested in an ad shown. Some of this information, including for example, your IP addresses and certain unique device identifiers, may identify a particular computer or device, and may be considered “personal data” in some jurisdictions in the European Union and elsewhere.
When you visit a website or application that uses the Zemanta One platform for targeted ads, we collect certain information about you and your device to help optimize ads and increase the likelihood that will be interested in an ad shown. Some of this information, including for example, your IP addresses and certain unique device identifiers, may identify a particular computer or device, and may be considered “personal data” in some jurisdictions in the European Union and elsewhere.
Information that we may collect includes: IP address, domain, browser type and language, referring website addresses, date/time of visits, page view data, search keywords, your activities and actions on publisher’s sites, browser history, Internet service provider, referring/exit pages, platform type, date/time stamp, geolocation (including city, country, zip code, and geographic coordinates, if you have enabled location services on your device), click data, types of advertisements viewed, and information about your device including device make, device model, device operating system, device operating system version, and data connection type. We do not collect any “sensitive personal data” as defined under European data protection laws.
We may also collect information about our partners’ interactions with you—for example, by placing pixels on an advertiser’s webpage so we can know if you ultimately purchased an item after viewing an advertisement bought through our platform or by integrating with the partners’ web analytics software, so we can know how long and where you engaged on their site. We may partner with other companies that are permitted to share anonymous information with us in order to enhance audience profiles. For example, we may partner with companies to learn the kinds of products you buy or express interest in.
How we collect information
We collect information in industry standard ways, including:
We collect information in industry standard ways, including:
Cookies – Cookies are short strings of characters. Zemanta uses cookies to uniquely identify an internet browser and in turn a device. We sync those cookies with our partners, so we can identify users across environments and know which segments our partners identify them with. For more information about cookies, visit http://www.allaboutcookies.org/.
Pixel Tags – Pixel tags are transparent images or short snippets of Javascript that our partners and clients use to understand how their users interact with their properties online, including websites and mobile apps.
Mobile Advertising Identifiers – Mobile advertising IDs (like IDFA) are unique, non PII IDs associated with individual mobile devices. Users can reset them by instructing their device to do so.
General Web Analytics – We integrate with Web Analytics software of our clients and partners in order to observe how users behave after clicking on ads. We do not control how third party Web Analytics software collects the data as this is defined by its own privacy policy.
How we use the information we collect
We primarily use the information we collect to enable our partners and clients to buy appropriate advertising space across the Zemanta One platform, which allows buying advertisements on the web and in desktop and mobile apps.
We primarily use the information we collect to enable our partners and clients to buy appropriate advertising space across the Zemanta One platform, which allows buying advertisements on the web and in desktop and mobile apps.
This information is used to target ads to consumers on behalf of our advertisers. This means displaying ads that might be of interest to consumers sharing certain traits. In some cases, our data is used in conjunction with the information advertisers have collected themselves (for example by bringing their CRM data into Zemanta One platform). This information is also used to appropriately price the ads on behalf of our advertisers.
Zemanta and its third-party partners may disclose links to or the entirety of articles you read, and in connection therewith, you waive any rights you may have under the California Reader Privacy Protection Act, the United States Video Privacy Protection Act, and any similar federal, state, local, or foreign law. Third parties may be able to ascertain your identity by using information we disclose to them in anonymized form in conjunction with other information they may have.
Data retention
Data retention
Cookies that are used to identify browsers expire after one year or less on a user’s machine. Likewise, data Zemanta One platform retains about those identifiers is retained for 90 days. Log level data of served ads, such as IP address and date an ad is served may be retained indefinitely.
Zemanta also maintains a Data Retention Policy that details the retention period for personal data based on our analysis of how long the specific data is reasonably required for legal or business purposes. When we no longer need personal data, we securely delete or destroy it. Aggregated data, which cannot identify a device/browser (or individual) and is used for purposes of reporting and analysis, is maintained for as long as commercially necessary.
Consumer Choice: Opt-Out
Opt out means you inform Zemanta One platform that you wish Zemanta to delete the data it holds about your browser and cease collecting data while you remain opted-out (which means a non-unique opt-out cookie is set in your browser).
Opt out means you inform Zemanta One platform that you wish Zemanta to delete the data it holds about your browser and cease collecting data while you remain opted-out (which means a non-unique opt-out cookie is set in your browser).
In practice, this means Zemanta One platform will not have and therefore will not be able to use any information specific to your browser to deliver targeted ads to you.
Please note that you will still see ads if you opt out, they just won’t be interest-based or otherwise targeted based on your browser’s cookie.
You can opt out on this page: https://www.zemanta.com/opt-out
Additionally, you can reset your Mobile Advertising Identifiers on your mobile device by following instructions for iOS devices and for Android Devices.
Information Our Customers Collect
Our customers and other third parties who use our technology may use their own tags, pixels, cookies, or other similar technology (or those of their other affiliates) within their advertisements and on certain websites. These customers maintain their own privacy policies and processes. We are not responsible for the privacy practices of customers that use our technology.
Our customers and other third parties who use our technology may use their own tags, pixels, cookies, or other similar technology (or those of their other affiliates) within their advertisements and on certain websites. These customers maintain their own privacy policies and processes. We are not responsible for the privacy practices of customers that use our technology.
Children
None of our services are directed to children under 16. We do not knowingly collect personal data from anyone under 16 years of age. If we determine upon collection that you are under 16, we will not use or maintain your personal data. If we become aware that we have unknowingly collected personal data from a child under the age of 16, we will make reasonable efforts to delete such information from our records. If you’re a kid, please go play in the yard, don’t use or interact with Zemanta!
None of our services are directed to children under 16. We do not knowingly collect personal data from anyone under 16 years of age. If we determine upon collection that you are under 16, we will not use or maintain your personal data. If we become aware that we have unknowingly collected personal data from a child under the age of 16, we will make reasonable efforts to delete such information from our records. If you’re a kid, please go play in the yard, don’t use or interact with Zemanta!
European Territory Citizens
In compliance with European privacy laws, in particular, the European General Data Protection Regulation (GDPR), Zemanta provides specific additional rights for citizens of the European Territories such as the right to access, rectification, right to object, to complaint, erasure and blockage. More specifically:
In compliance with European privacy laws, in particular, the European General Data Protection Regulation (GDPR), Zemanta provides specific additional rights for citizens of the European Territories such as the right to access, rectification, right to object, to complaint, erasure and blockage. More specifically:
- The right to request information about whether and which personal data is processed by our company, and the right to demand that personal data is rectified or amended.
- Under certain circumstances, the right to request that personal data should be deleted.
- Under certain circumstances, the right to demand that the processing of personal data should be restricted.
- Withdraw your consent to the processing and use of your data completely or partially at any time with future application.
have the right to obtain your personal data in a common, structured and mechanically readable format. - Contact your data protection officer if there are any questions, comments, complaints or requests in connection with our statement on data protection and the processing of your personal data.
- The right to complain to the responsible supervisory authority if believed that the processing of your personal data is in violation of the legislation.
In addition to the above, we reference certain rights for European Territory citizens throughout this Privacy Policy. Pursuant to the GDPR, citizens from “European Territories” mean the European Economic Area (EEA) and Switzerland. For the purpose of this Privacy Policy, the term “European Territories” shall continue to include the United Kingdom, even after the United Kingdom leaves the European Economic Area following Brexit.
California Privacy Rights
Under California Civil Code sections 1798.83-1798.84, California residents are entitled to ask us for a notice describing what categories of personal information we share with third parties or corporate affiliates for those third parties or corporate affiliates’ direct marketing purposes. That notice will identify the categories of information shared and will include a list of the third parties and affiliates with which it was shared, along with their names and addresses. If you are a California resident and would like a copy of this notice, please submit a written request to [email protected] or send to the following address: Zemanta Inc., 39 West 13th Street, 3rd floor, New York, NY 10011. Please allow 30 days for a response.
Under California Civil Code sections 1798.83-1798.84, California residents are entitled to ask us for a notice describing what categories of personal information we share with third parties or corporate affiliates for those third parties or corporate affiliates’ direct marketing purposes. That notice will identify the categories of information shared and will include a list of the third parties and affiliates with which it was shared, along with their names and addresses. If you are a California resident and would like a copy of this notice, please submit a written request to [email protected] or send to the following address: Zemanta Inc., 39 West 13th Street, 3rd floor, New York, NY 10011. Please allow 30 days for a response.
“Do Not Track” Disclosure
Some browsers transmit Do Not Track (DNT) signals to websites. Because there is no common understanding of how to interpret the DNT signal, Zemanta does not currently alter, change, or respond to DNT requests or signals from these browsers. We will continue to monitor industry activity in this area and reassess our DNT practices as necessary. In the meantime, you can use the range of other tools we provide to control data collection and use, including the ability to opt out in the Consumer Choice: Opt-Out section.
Some browsers transmit Do Not Track (DNT) signals to websites. Because there is no common understanding of how to interpret the DNT signal, Zemanta does not currently alter, change, or respond to DNT requests or signals from these browsers. We will continue to monitor industry activity in this area and reassess our DNT practices as necessary. In the meantime, you can use the range of other tools we provide to control data collection and use, including the ability to opt out in the Consumer Choice: Opt-Out section.
Changes to this privacy policy
Zemanta may update this privacy policy at any time (on a prospective basis). When we do, we will post an updated version here, and indicate the date of revision at the top of this page. We may, but are not required to, give you notice through other means. We encourage you to frequently check this page for any changes to stay informed about how we are helping to protect the information we collect.
Zemanta may update this privacy policy at any time (on a prospective basis). When we do, we will post an updated version here, and indicate the date of revision at the top of this page. We may, but are not required to, give you notice through other means. We encourage you to frequently check this page for any changes to stay informed about how we are helping to protect the information we collect.
Contact Us
If you have any questions about this Privacy Policy, the practices of this site, or your dealings with this site, please contact us at:
If you have any questions about this Privacy Policy, the practices of this site, or your dealings with this site, please contact us at:
Zemanta Inc. 39 West 13th Street 3rd floor, 10011 New York, NY
If we do not satisfactorily answer your questions or concerns, you may also contact the following for advice, support or complaints:
- Our external Data Protection Officer (“DPO”): ePrivacy GmbH, represented by Prof. Dr. Christoph Bauer. ePrivacy GmbH can be reached directly at [email protected]; and/or
- The Information Commissioner’s Officer, which is our lead supervisory service within the European Territories.
Zemanta Cookie Table
Effective September 19, 2019
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ZEMANTA'S COOKIE TABLE
This Cookie Table provides you with information about the cookies and other similar technologies Zemanta and/or its partners may use, their purpose and the retention period associated with such cookie. Where a third party partner drops a cookie, they determine the purpose for which that cookie is dropped and the relevant retention period.
We may place cookies or similar files such as pixel tags and web beacons on the devices you use to engage with Zemanta for security purposes, to facilitate site navigation and to personalize your experience when you engage with Zemanta as a Site Vistior, a User or a Business Partner. Cookies allow us to collect technical and navigational information, such as browser type, time spent by you engaging with Zemanta and pages visited. Please read the Privacy Policy to further understand how we use data collected by these cookies.
For even more information about cookies, we recommend visiting: https://cookies.insites.com/about-cookies/
| Users | + |
| Name | Domain | Purpose | Expiration |
| zuid | .zemanta.com | Holds the anonymous user's ID. Used for tracking user actions, such as clicks on the recommendations | 1 year |
| zoptout | .zemanta.com | Holds information about optout rom Z1 tracking services. | 100 years |
| Site Visitors | + |
| Name | Domain | Purpose | Expiration |
| BizoID | .ads.linkedin.com | These cookies are associated with Linkedin. It typically acts as a third party host where website owners have placed one of its content sharing buttons in their pages, although its content and services can be embedded in other ways. Although such buttons add functionality to the website they are on, cookies are set regardless of whether or not the visitor has an active Linkedin profile, or agreed to their terms and conditions. For this reason it is classified as a primarily tracking/targeting domain. | 30 days |
| UserMatchHistory | .linkedin.com | 30 days | |
| lang | ads.linkedin.com | Session | |
| lang | .linkedin.com | Session | |
| lidc | .linkedin.com | 1 day | |
| bcookie | .linkedin.com | 2 years | |
| __cfduid | .zemanta.com | This domain owned by AddToAny. The main business activity is: Social Sharing Services and Tracking | 1 year |
| _fbp | .zemanta.com | This cookie will help deliver our advertising to people who have already visited our website when they are on Facebook or a digital platform powered by Facebook Advertising. | 90 days |
| _ga | .zemanta.com | This cookie is used to distinguish unique users by assigning a randomly generated number as a client identifier. It is included in each page request in a site and used to calculate visitor, session and campaign data for the sites analytics reports. | 2 years |
| _gid | .zemanta.com | This cookie is associated with Google Universal Analytics. No information is available from Google however, it appears to store and update a unique value for each page visited. | 1 day |
| _gcl_au | .zemanta.com | Used by Google AdSense for experimenting with advertisement efficiency across websites using their services. | 90 days |
| fr | .facebook.com | These cookies are owned by Facebook: It is not directly tied to individual Facebook the user. It is used to help with security and suspicious login activity, especially around detection of bots trying to access the service. This cookie is also read via Like and other Facebook buttons and tags placed on many different websites. This is used to serve targeted advertising to its users when logged into its services. In 2014 it also started serving up behaviourally targeted advertising on other websites, similar to most dedicated online marketing companies. Contains browser and user unique ID combination, used for targeted advertising. This is used to serve targeted advertising to its users when logged into its services. In 2014 it also started serving up behaviourally targeted advertising on other websites, similar to most dedicated online marketing companies. Contains browser and user unique ID combination, used for targeted advertising | 90 days |
| test_cookie | .doubleclick.net | This cookie is set by DoubleClick (which is owned by Google) to determine if the website visitor's browser supports cookies. | 15 min |
| Business Partners | + |
| Name | Domain | Purpose | Expiration |
| BizoID | .ads.linkedin.com | These cookies are associated with Linkedin It typically acts as a third party host where website owners have placed one of its content sharing buttons in their pages, although its content and services can be embedded in other ways. Although such buttons add functionality to the website they are on, cookies are set regardless of whether or not the visitor has an active Linkedin profile, or agreed to their terms and conditions. For this reason it is classified as a primarily tracking/targeting domain. | 30 days |
| UserMatchHistory | .linkedin.com | 30 days | |
| lidc | .linkedin.com | 1 day | |
| bcookie | .linkedin.com | 2 years | |
| lang | .linkedin.com | Session | |
| lang | .ads.linkedin.com | Session | |
| _fbp | .zemanta.com | This cookie will help deliver our advertising to people who have already visited our website when they are on Facebook or a digital platform powered by Facebook Advertising. | 90 days |
| _ga | .zemanta.com | This cookie is used to distinguish unique users by assigning a randomly generated number as a client identifier. It is included in each page request in a site and used to calculate visitor, session and campaign data for the sites analytics reports. | 2 years |
| _gat | .zemanta.com | This is a pattern type cookie set by Google Analytics, where the pattern element on the name contains the unique identity number of the account or website it relates to. It is variation of the _gat cookie which is used to limit the amount of data recorded by Google on high traffic volume websites. | 1 minute |
| _gat_UA-74379813-1 | .zemanta.com | 1 minute | |
| _gat_UA-74379813-2 | .zemanta.com | 1 minute | |
| _gcl_au | .zemanta.com | Used by Google AdSense for experimenting with advertisement efficiency across websites using their services. | 90 days |
| _gid | .zemanta.com | This cookie is associated with Google Universal Analytics. No information is available from Google however, it appears to store and update a unique value for each page visited. | 1 day |
| __cfduid | .zemanta.com | This domain is owned by AddToAny. The main business activity is: Social Sharing Services and Tracking | 1 year |
| intercom-session-anyekw96 | .zemanta.com | This is the Intercom cookie that enables the chat feature in the dashboard. | 7 days |
| mp_Offce3e85e7532b9aa433bce9f7_mixpanel | .zemanta.com | This cookie is set by Mixpanel for analyzing traffic and how the dashboard is being used. | 1 year |
| csrftoken | one.zemanta.com | This cookie is associated with the Django web development platform for Python. It is designed to help protect a site against at particular type of software attack on web forms. | 1 year |
| deviceid | one.zemanta.com | This cookie is used for security. With it we can detect the last device that was used to sign in and warn the user in case of unusual account activity. | 5 years |
| sessionid | one.zemanta.com | This is anonymous session identifier and is used for retaining the session of a logged in user. | 14 days |
| fr | .facebook.com | These cookies are owned by Facebook: It is not directly tied to individual Facebook the user. It is used to help with security and suspicious login activity, especially around detection of bots trying to access the service. This cookie is also read via Like and other Facebook buttons and tags placed on many different websites. This is used to serve targeted advertising to its users when logged into its services. In 2014 it also started serving up behaviourally targeted advertising on other websites, similar to most dedicated online marketing companies. Contains browser and user unique ID combination, used for targeted advertising. This is used to serve targeted advertising to its users when logged into its services. In 2014 it also started serving up behaviourally targeted advertising on other websites, similar to most dedicated online marketing companies. Contains browser and user unique ID combination, used for targeted advertising | 90 days |
Glossary of Terms
Effective April 30, 2020
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Zemanta Glossary of Terms
- The Ad Tech Ecosystem
At Zemanta, we understand the advertising technology ecosystem may be complex to understand. Zemanta, acts as a DSP (as defined below) in the ad tech ecosystem. Below is a basic diagram of how companies within the ecosystem interact with each other.
- Glossary of relevant ad tech terms
Term | Definition |
Ad Exchange | A technological platform that enables buying and selling ad inventory among publishers and advertisers through real time bidding. |
Ad Inventory | Ad inventory is the total amount of space that a publisher has available for advertisements at any given time. |
Ad Tech | Advertising technology, or ad tech, refers to software built for the advertising industry that helps improve media effectiveness and increase operational efficiencies. Ad tech can refer to a number of platforms, including demand side platforms (DSPs), data management platforms (DMPs), supply side platforms (SSPs) and Ad Exchanges. |
Ad Network | An Ad Network is a company that matches a publisher’s supply of site inventory with advertisers who wish to display their advertisements on such sites. An Ad Network uses programmatic buying to facilitate this. |
Advertiser | A brand, company or individual who is interested in opportunities to promote their service, product or brand using digital (creatives): banners, text links, videos, placed on publisher’s websites. The creatives are placed on publisher’s website for a certain fee and contain the links, redirecting the user to the advertiser’s website upon clicking. |
Advertisement | A digital advertisement is audio, visual or textual form of information (creative), displayed within the app or on the website, the purpose of which is promoting a product/service or company’s brand. The ad is the main tool of advertising process the ultimate aim of which is reaching a potentially interested audience, willing to buy the product. |
Agency | An advertising agency, often referred to as a creative agency or an ad agency, is a business dedicated to creating, planning, and handling advertising and sometimes other forms of promotion and marketing for its clients. |
Data Management Platform | A data management platform is a software platform used for collecting and managing data. They allow businesses to identify audience segments, which can be used to target specific users and contexts in online advertising campaigns. |
Demand Side Platform | A DSP, or demand side platform, offers advertisers or agencies a centralised tool to manage buying of advertising inventory through one interface. |
First Party Data | First-party data is collected and owned by the party who collected it (brand, media company, etc.) about the consumer. |
Supply Side Platform | A supply-side platform (SSP) is a software system that allows publishers to offer their Ad Inventory on their sites to ad exchanges and demand-side platforms (DSP)s. |
Open RTB | OpenRTB, also referred to as the Real-Time Bidding (RTB) Project, is an initiative sponsored by the IAB (the Interactive Advertising Bureau). The project provides standards for communication between buyers of advertising and sellers of publisher inventory who are involved in the automated trading of digital media. |
Programmatic Buying | Programmatic buying is the process of executing transparent media planning and buying using automation. Agencies use programmatic on behalf of their advertiser clients to increase marketing efficiency, helping them to get more out of media budgets. |
Publisher | The owner of Ad Inventory (e.g., website or applicable) where advertisers can place their ads. |