Master Services Agreement
Effective January 23, 2019
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“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).
(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.
- 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.
(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.
(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.
(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.
- Data Protection/Privacy
(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).
- 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.
- 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.
- 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.
- 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.
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.