Effective as of May 25, 2023
Welcome to Zeeto! These terms of use (“Terms”) as well as any subsequent service
orders (“Service Orders”) are entered into as of May 25, 2023 (the “Effective Date”) by ZeetoGroup, LLC, (“Zeeto,” “we,” “us,” or “our,”) and the person or entity, that executes or accepts these Terms electronically (“Client,” “you,” or “your”) or successor entity, agency, or network acting on Client’s behalf. As used herein, “Parties” means you and Zeeto. For clarity, typical clients include, but are not limited to call centers, companies looking to drive web traffic to their website, emailers, pollsters, consumer researchers, advertisers, companies looking to supplement their customer profiles, and direct mailers. By using the services (“Services”; as further described in the Services section below), Client agrees to these Terms as well as any other applicable Zeeto policies and such policies are incorporated herein by this reference (these Terms and all applicable policies, collectively, the “Agreement”). If in conflict, agreements signed after the Terms between Zeeto and Client shall control. In case of conflict with policies, the Terms take precedence.
1. Services. Services may include Zeeto’s software, access to Zeeto’s platform (“Platform”), third party software, third party services, and data, which allow Client to configure and manage campaigns (“Campaigns”; as further defined below) within the Platform. Products include advertising, polling, data supplementation, and consumer or market research. Zeeto may launch new products and may update the Agreement accordingly. All of Client’s Campaigns will be governed by this Agreement. A Campaign is each of Client’s configurations of a product including creatives, content, and linked content. Active and eligible Campaigns compete in real-time auctions on certain publishers’ websites, applications, mobile sites, or other properties owned by such publishers (collectively, “Network”). All participating publishers in the Network are required to sign our partner agreement which obligates them to assume liability for adherence to our guidelines and requirements. In connection with the Services, Client shall pay Zeeto for all billable transactions (“Payable Action”) as described within the Payment section of this Agreement and as set forth within the settings of Client’s Platform account or the applicable Service Order.
2. Applicable Use. Client may only use the Services as expressly permitted by this Agreement and Applicable Law (defined below). Client shall be solely responsible and liable for all usage of and activity on Client’s account, including any approvals, postings, pricings, breaches, violations, usage of the products, or bidding errors. Client will immediately notify Zeeto upon discovery of any actual or suspected unauthorized use of Client’s account. Zeeto may conduct audits from time to time to determine Client’s compliance with this Agreement. Zeeto reserves the right to limit Client’s access or revoke access to the Platform at any time and for any reason.
Client may not use the Services, Platform, or any data provided by Zeeto for or in connection with:
a. reverse engineering, making machine code human readable, or creating derivative works or improvements;
b. scraping, crawling, downloading, screen-grabbing, or otherwise copying and/or transmitting them in any way we haven’t specifically permitted;
c. commercially exploiting or providing them to third parties;
d. introducing, transmitting, or storing viruses or other malicious code;
e. interfering with their security or operation;
f. framing or mirroring them;
g. creating, benchmarking, or gathering intelligence for a competitive offering;
h. removing, modifying, or obscuring proprietary rights notices on them;
i. defaming or harassing anyone;
j. infringing another party’s intellectual property rights, including failing to obtain permission to upload/transfer/display works of authorship;
k. intercepting or expropriating data; and/or
l. spamming, spoofing, or otherwise misrepresenting transmission sources.
Notwithstanding anything contained to the contrary in this Agreement, Client will not be permitted to use sales leads provided by Zeeto under this Agreement, for any other advertising purposes than as provided herein and except as explicitly disclosed to consumers, without Zeeto’s prior consent in writing. This includes, but is not limited to, receiving phone calls and sending text/SMS messages to those sales leads. Client will not be permitted to resell sales leads to any third party, including aged data.
3. Creatives. In connection with the Services, Zeeto may distribute Client’s proprietary, including online display ads, copy, text, questions, banners, buttons, graphic files, logos, trademarks, copyrights and similar media (collectively, “Creatives”). Client shall be solely responsible and liable for all Creatives either provided to Zeeto or uploaded in Client’s Platform account, including the content contained therein and the consequences of display on the Network, and Client agrees to indemnify and hold Zeeto harmless for any damages or attorneys’ fees arising from usage or display of Client’s Creatives and Campaigns. Client grants to Zeeto a non-exclusive, transferable, royalty-free, fully paid-up, sub- licensable right and license to use, reproduce, display, transmit, and distribute the Creatives for the purpose of performance of this Agreement. No material changes shall be made to the Creatives without Client’s prior consent, and in all events, Client shall be solely responsible and liable for all Creatives. A material change means any substantial change in content that would significantly change the purpose and meaning of the Creatives. Zeeto reserves the right and without liability to reject, exclude, or terminate any Creatives for any reason at any time.
Client may provide details about each Campaign, including the Campaign length, the Campaign budget, and any other information and settings configurable within the Platform or in an applicable Service Order. Client’s Creatives and Campaign details displayed within the Platform will be made available for Zeeto to place on the Network; however, placing Client’s Campaign on the Platform does not guarantee placement on the Network. Client may choose to pause any Campaign at any time by doing so via the Platform.
Client agrees that, in providing Zeeto with the ability to publish and distribute the Creatives, Campaigns, and/or other material, Internet users may link through such Campaigns on the Platform to content designated by Client, Zeeto is acting only as a passive conduit for the distribution and publishing of such Campaigns, and Zeeto has not reviewed the Creatives or Campaigns for regulatory compliance. Zeeto makes no warranties, and expressly disclaims any and all warranties, regarding the Creatives or Campaigns. Zeeto reserves the right to reject any content or pause any Campaign for any reason at our sole discretion.
Once a Campaign is activated in the Platform, it begins participating in a live auction and may incur billable purchase activity in the form of Payable Actions. If a Campaign enters an auction and wins, meaning the consumer converted, Client is responsible to pay Zeeto if a Payable Action occurs. Payable Actions are based on a Campaign’s rate type and are completed in real time. Thus, Zeeto cannot issue refunds or credits due to errors, scrubs, or instances of receiving duplicate data after the fact.
4. Client Representations and Warranties. Client represents and warrants:
a. Applicable Law. Client complies and will comply with all Applicable Laws, rules, regulations, ordinances, and agency guidelines in advertising and marketing practices, including, but not limited to the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227)and all implementing regulations and interpretive orders of same (“TCPA”), the Federal Trade Commission’s (“FTC”) Telemarketing Sales Rule (16 C.F.R. § 310), the CAN-SPAM Act of 2003 (15 U.S.C. §§ 7701-7713), as amended and revised, and all implementing regulations and interpretive orders of same (“CAN-SPAM”), the California Consumer Privacy Act (Cal. Civ. Code §1798.100 et seq.), the California Privacy Rights Act, and all implementing regulations (“CCPA”), including the ZAN Data Processing Agreement incorporated by reference to this Agreement and available on the Platform, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”), the Fair Credit Reporting Act 15 U.S.C. § 1681 (“FCRA”), the Children’s Online Privacy and Protection Act of 1998, 15 U.S.C. §§ 6501–6506 (“COPPA”), the FTC’s Marketing Principles for Online Negative Option Marketing, and the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, together with any similar state laws and regulations (collectively, “Applicable Law”).
b. Prohibited Content. Unless Zeeto provides prior written consent, Client will not post any Creatives or other content onto the Platform that contain any of the following:
i. Content that infringes upon the trademark, trade name, logo, publicity
right, copyright, or other intellectual property right of any third party;
ii. Content directed towards children under the age of 13;
iii. Deceptive, misleading, false, defamatory, or fraudulent content;
iv. Content that would be considered an invasion of privacy, degrading,
libelous, or an infringement on any personal right;
v. Any content that is construed as violent, shocking, sensational, or
disrespectful;
vi. Any content that is construed as hate speech, degrading, demeaning,
or discriminatory;
vii. Any content that is pornographic, sexual, or obscene;
viii. Malware or adware;
ix. Any content that is illegal, promotes illegal activity, or infringes on the
legal rights of others;
x. Content that is construed as interfering with politics; or
xi. Any content violating any federal or state law.
c. Disclaimers and Disclosures. Client shall place proper disclaimers, opt-in and other consent language, and disclosures within Campaigns, as per Applicable Law or regulatory requirements. Client is solely responsible and liable for ensuring Campaigns comply with Applicable Law. Zeeto shall not be liable for Client’s failure to include necessary disclosures or disclaimers within Client’s Campaigns. Any suggestions Zeeto provides about disclosures or disclaimers are given without warranty, and do not absolve in any way Client’s duty to ensure the legality of Campaigns. Client shall use the sales leads exclusively for the purposes consumers consented to in Client’s disclaimers and disclosures, including but not limited to, receiving phone calls/SMS. Any misuse of the sales leads will be considered as a breach of this Agreement and Zeeto shall not be liable to consumers in any way as a result of such breach.
Client shall maintain a clear and conspicuous privacy policy posted on Client’s website(s) that: (a) complies with all applicable legal, regulatory, and self-regulatory requirements, including FTC guidelines and the Digital Advertising Alliance’s Self-Regulatory Principles for Online Behavioral Data;(b) adequately discloses that Client enables third parties to collect, share, and use personally identifiable information and user data; and (c) provides individuals with the option to opt-out either via www.aboutads.info/choices or www.networkadvertising.org. Client is solely responsible for your privacy policy terms and conditions of use, and acknowledge and agree that Zeeto will not provide, nor be liable for any terms or privacy policies for your use.
d. Advertisement Claims. With respect to the Campaign(s) Client warrants that(i) Client has all intellectual property and other rights and licenses necessary to permit the use and/or display; (ii) Client has reliable substantiation for any and all claims, testimonials, endorsements, and other promotional materials; and (iii) statements are truthful, factually accurate, non-deceptive, non- misleading, substantiated by valid and reliable scientific evidence, and/or represent the honest opinions, findings, beliefs and/or experiences of the endorser and do not contain any false, misleading, or unsubstantiated content; and (iv) Client will fulfill commitments to consumers. Zeeto may, at any time, request documentation to substantiate any claims and Client shall provide such documentation within five (5) business days of such request. Zeeto further reserves the right to demand third party verification for any claims. In all events, Zeeto has no obligation to monitor Campaigns for compliance with Applicable Laws and shall have no liability for any violation of same. Client shall be exclusively responsible and liable for monitoring or failing to monitor Campaigns for compliance with Applicable Laws.
e. Government Action. Client has disclosed to Zeeto the existence of any past federal or state decrees, orders, or consent agreements involving Client, and any threatened or pending formal or informal government investigations or prosecutions involving Client by the FTC, any other federal or state governmental or regulatory body or agency, or any industry regulatory authority, that would impede the implementation of this Agreement. If Client becomes involved or named in any such action, investigation or other proceeding, Client shall immediately provide notice to Zeeto. This provision solely applies to past or present actions, investigations or other proceedings that may reasonably impede Client’s ability to perform hereunder.
f. Deceptive Practices. Client shall not use deceptive practices which include:
i. limiting Zeeto’s ability to monitor Client’s use of the Services;
ii. redirecting Campaigns to non-approved pages or disguising a Campaign to appear compliant (“cloaking”);
iii. directing traffic to a landing page that is considered deceptive, fake, false, or misleading;
iv. hiding the true content of any Campaign; and/or
v. uploading any viruses or harmful content to the Platform.
g. Other. Client represents and warrants that: (i) you are a corporation or business entity duly incorporated or organized, validly existing, and in good standing under the laws of your state of incorporation or organization; (ii) you have the power and authority to enter into and perform your obligations under this Agreement; (iii) the Campaigns shall comply with Applicable Law; (iv) the Campaigns contain no fraudulent, deceptive, unsubstantiated, or misleading material; (v)you own, or have sufficient rights to sublicense the Campaigns;(vi) the Campaigns are free of viruses or similar defects; (vii) the Campaigns were created without any contribution of any kind from Zeeto, including, without limitation, editorial control or approval; (viii) Client is solely and exclusively responsible for any and all liabilities, losses, costs, claims, and expenses arising out of or relating to the Campaigns; and (ix) any suggestions Client receives from Zeeto are made “as is” and without any warranty of any kind.
h. Damages. In the event of breach of this Agreement, Client shall be liable to pay the greater of: (i) $100,000in liquidated damages plus all payments owed prior to or following breach; or (ii) Zeeto’s actual and consequential damages, including lost profits, plus all payments owed prior to or following breach. Client agrees that the liquidated damages constitute compensation and are not construed as a penalty, that actual and consequential damages may be difficult to estimate, and liquidated damages are a reasonable estimate of the anticipated actual damages. Client agrees that Zeeto’s actual and consequential damages include, in the event Client’s breach causes a publisher or other client to cease its relationship with Zeeto, twelve (12) times the average monthly revenue previously generated by Zeeto through such publisher or other client. For avoidance of doubt, nothing herein limits Client’s indemnification obligations under the Indemnity section below.
5. Representations and Warranties of Zeeto. Zeeto represents and warrants that: (i) we are a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware; (ii) we have the power and authority to enter into and perform our obligations under this Agreement; and (iii) the execution, delivery, and performance of this Agreement by Zeeto will not constitute a violation of any Applicable Law or any judgment, order or decree, nor a default or breach of any contract with a third party.
6. Testing. Client authorizes Zeeto to conduct tests that may affect Client’s use of Services, including Campaign formatting, targets, destinations, quality, ranking, performance, pricing, and auction-time bid adjustments. To ensure the timeliness and validity of test results, Client authorizes Zeeto to conduct such tests without notice or compensation to Client.
7. Payment.
a. Invoices. Client agrees to timely pay Zeeto for all Payable Actions as per the payment terms in the Service Order or in Client's Platform account without offset. It is agreed that Zeeto's tracking statistics will be used to determine the amounts due from Client to Zeeto. Zeeto reserves the right to reasonably change our tracking methodology at our discretion. If a deficiency in the amount invoiced is discovered, Zeeto reserves the right to update the invoice to reflect the correct amount due. Payable Actions include, but are not limited to, CPC (cost per click or cost per completed poll), CPL, (cost per submitted lead not accepted lead), and CPA (cost per action or cost per acquisition). Zeeto will transmit an invoice to Client for the total amount owed for Client's Payable Actions.
b. Disputes. Client shall have seven (7) days from the date of an invoice to notify Zeeto, in writing, of any extrinsic fraud affecting any charges. Zeeto will not issue a credit or refund under any circumstance not related to extrinsic fraud. Examples of excluded reasons for credit or refund include, but are not limited to, duplication, tracking, link redirect errors, Client's system failures,
i. administrative errors, failures to pause Campaigns, false lead posting specifications, failure to maintain or update a suppression file, or any other such reason. If Zeeto determines a dispute is a result of extrinsic fraud, Zeeto shall provide an adjusted invoice within two (2) business days after receiving notice of the dispute from the Client. If Client fails to notify Zeeto in accordance with this section, Client waives all rights to contest any entry on the invoice.
c .Non-payment. In the event of Client’s failure to pay the invoice in a timely manner, Zeeto reserves the right to suspend the Services immediately and without notice. Client shall use commercially reasonable efforts to immediately notify Zeeto of any late payments. If no payment is made within thirty (30) days after the invoice due date, Zeeto reserves the right to initiate legal proceedings as per section 13 of the Terms.
d. Collection. Client shall be liable to Zeeto for all costs of collection incurred in pursuing payment for outstanding, overdue, unpaid invoices, including attorneys' fees. Interest on said overdue balances shall accrue at the rate of 1% per month.
8. No Exclusivity, No Non-Circumvent. Zeeto does not grant Client any implied or explicit exclusivity of any kind, nor do we grant you any non-circumvent rights. We have the right to work with any Client, partner, entity or person at any time.
9. Audit Rights. Zeeto shall have the right to perform an audit during the term of this Agreement. The scope of the audit will be directed solely to the Client’s use of the Services hereunder, and for a period of two (2) years following termination or expiration of this Agreement to ensure Client’s compliance with this Agreement. Zeeto will provide Client with ten (10) days written notice prior to conducting an audit. If Client requires remote audit, Client must provide notice within five (5) days of Client receiving Zeeto’s written notice of its intent to conduct an audit. Zeeto shall bear the expense of any audit conducted, except in the event the audit determines non- compliance by the Client. In such an event, Client will bear the costs of the audit and shall pay any amount owed according to the audit, plus interest.
10. Term and Termination. The term of this Agreement commences on the Effective Date and continues until terminated. Client may terminate this Agreement at any time by written notice to Zeeto. Any payment obligations owed by Client prior to Client’s termination shall remain until fully paid. Zeeto may terminate this Agreement at any time and for any reason. Any payment obligations owed by Client prior to Zeeto’s termination shall remain until fully paid. Client may not create a new account once we terminate the Agreement without prior written consent from us. Upon termination of this Agreement, all licenses granted through this Agreement will immediately terminate. All provisions regarding damages, indemnification, warranty, liability, and limits thereon, and confidentiality and/or protections of proprietary rights and trade secrets shall survive the termination of the Agreement.
11. Intellectual Property. Other than as expressly stated in this Agreement, neither Party will acquire any right, title, or interest in any intellectual property rights belonging to the other Party or the other Party’s licensors. Each Party agrees that it solely assumes all responsibility for its respective intellectual property. If Zeeto provides Client with software or access to software (including, but not limited to Zeeto’s websites) in connection with the Services, we grant Client a non-exclusive, non-sub licensable, non-transferable, and revocable license to access and use the Platform during the term of this Agreement. This license is for the sole purpose of enabling Client to use and enjoy the benefit of the Services as provided by Zeeto, in the manner permitted by this Agreement. Client’s only acceptable use of the Platform is as described in this section and the Applicable Use section above. If Client violates this section, damages are not limited by Client’s previous spend in the Platform but will be calculated as past and future damage to Zeeto’s business and revenues.
12. Disclaimer/Limitation of Liability. THE PLATFORM AND THE SERVICES ARE PROVIDED BY ZEETO ON AN “AS IS, AS AVAILABLE BASIS”, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED UPTIME, ACCESSIBILITY, AVAILABILITY, DISPLAY OR DISTRIBUTION OF ANY CREATIVES OR LINKED CONTENT. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY CREATIVE OR LINKED CONTENT, ZEETO’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS COMMERCIALLY PRACTICABLE. ZEETO DOES NOT GUARANTEE THAT THE PLATFORM WILL BE ACCESSIBLE AT ALL TIMES. ZEETO DOES NOT GUARANTEE THAT EACH OR ANY PAYABLE ACTION IS VALID, CONTAINS ACCURATE INFORMATION, AND/OR WILL GENERATE REVENUE TO CLIENT OR ANY THIRD PARTY. THE PARTIES AGREE THAT ZEETO EXERCISES NO CONTROL OVER, ACCEPTS NO RESPONSIBILITY FOR, AND IS NOT LIABLE FOR THE ACTS AND/OR OMISSIONS OF ANY THIRD PARTIES, INCLUDING WITHOUT LIMITATION, OUR OTHER CLIENTS AND PUBLISHERS. THE PARTIES AGREE THAT ZEETO EXERCISES NO CONTROL OVER, ACCEPTS NO RESPONSIBILITY TO OTHER CLIENTS, PUBLISHERS, OR ANY THIRD PARTY FOR CLIENT’S FAILURE TO PAY INVOICES TO ZEETO IN A TIMELY MANNER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ZEETO MAKES NO, AND SPECIFICALLY DISCLAIMS, ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY LAW. ZEETO FURTHER SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ZEETO OR OUR AFFILIATES, LICENSORS OR SUPPLIERS, BE LIABLE FOR ANY INDIRECT OR DIRECT LOST PROFITS, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, EVEN IF THE PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ZEETO’S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, SHALL BE LIMITED TO THE AMOUNTS PAID TO ZEETO BY CLIENT DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. YOU MUST BRING ALL CLAIMS AND CAUSES OF ACTION WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE.
13. Dispute Resolution. Client agrees to first contact us at [email protected] for any dispute, controversy or claim arising under this Agreement so as to attempt to resolve the dispute or controversy informally. Any such dispute, controversy or claim that cannot be resolved through such informal process or negotiation shall be adjudicated in binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and the Federal Arbitration Act, with judgment on the award entered in any court having jurisdiction thereof. The Parties each agree that the arbitration costs and fees shall be paid by the prevailing party, that the arbitration will be conducted in the English language in the city of San Diego, California by a single neutral arbitrator, and that the prevailing Party in any arbitration shall be entitled to an award of its attorney’s fees and costs. In the event of a no-win situation, the Parties agree that the arbitration costs and fees shall be paid by the party who initiated the proceedings. Client agrees that disputes will only be arbitrated on an individual basis and shall not be consolidated, on a class wide, representative basis, or with any other arbitration(s) or other proceedings that involve any claim or controversy of any other party. If for any reason this arbitration clause is unenforceable or inapplicable, both Client and Zeeto agree, to the extent permissible by law, to waive any right to pursue any claims on a class action basis. If any portion of this class action waiver is limited, void, or unenforceable, then our agreement to arbitrate under this section will not apply and any controversy or claim must be brought exclusively in the state and federal courts in San Diego, California.
14. Confidential Information. For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by Zeeto to Client, as well as information that the Client knows or should know that Zeeto regards as confidential including, but not limited to: (a) business plans, financial information, strategies, know how, marketing plans, business partners, software, and technology; (b) the material terms of the Agreement (which shall be deemed Zeeto’s Confidential Information); and (c) any information marked or designated by Zeeto as confidential. Client shall have no obligation under this section with respect to any Confidential Information disclosed to you which: (i) is in or enters the public domain without breach of this Agreement; (ii) Client lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) Client lawfully knew prior to receiving such information from Zeeto.
Client agrees that you shall hold Zeeto’s Confidential Information in strictest confidence and will not disclose to any third party Confidential Information except as expressly permitted in this Agreement or as otherwise necessary to perform your obligations or exercise your rights under the Agreement and will take all reasonable measures to maintain the confidentiality of all Confidential Information in your possession or control, including, without limitation, by requiring all employees, agents and contractors with access to Zeeto’s Confidential Information to enter into written confidentiality agreements consistent with the confidentiality obligations under this Agreement. Client shall handle all Confidential Information received with the same degree of care as you use to maintain the confidentiality of your own confidential information, which shall in no event be less than reasonable care. As between the parties, all Confidential Information shall remain the sole and exclusive property of Zeeto and other than the licenses expressly granted in the Agreement, no disclosure or permitted use of the Confidential Information under this Agreement shall be construed as the grant of any right, title, or interest, by license or otherwise, in or to such Confidential Information. Notwithstanding the foregoing, Client may disclose Zeeto’s Confidential Information if required by Applicable Law or lawful order of a court of competent jurisdiction or governmental agency, provided that upon Client’s receipt of a request for such a disclosure, Client gives prompt notice thereof to Zeeto (unless such notice is not possible under the circumstances) so that Zeeto may have the opportunity to intervene and contest such disclosure and/or seek a protective order or other appropriate remedy at the sole and exclusive expense of Zeeto.
15. Indemnity. Client agrees to indemnify, defend and hold harmless Zeeto, our affiliates, subsidiaries, agents, clients, publishers, employees and officers from and against any and all third-party losses, liabilities, claims, damages, costs, expenses, and attorneys’ fees arising out of or related to any claims, suits, actions or proceedings, whether actual or threatened (collectively, the "Claims"), resulting from:
(a) Client’s breach of this Agreement, including, without limitation, failure to pay invoices to Zeeto;
(b) the Campaigns including, without limitation, any content within the Campaigns;
(c) Client’s use of the Services,
(d) any claim or action that arises from or is related to Client’s breach of any representations or warranties made under this Agreement
(e) breach of any covenant, obligation, representation or warranty contained in this Agreement
In addition to the foregoing, Client shall indemnify Zeeto for:
(i) responding to formal/official consumer complaints
(ii) the actions Zeeto may occasionally take to support Client in handling such complaints, in an effort to prevent them from developing into legal actions
(iii) for the costs and expenses with responding to a subpoena
(iv) all actions and costs incurred by Zeeto from all Client's actions and/or omissions
The Client shall pay Zeeto two times the actual invoice amount for all the legal costs, time, claims and/or actions it inccurs. Zeeto will invoice at its convenience, payments are due 15 days after receipt.
Zeeto will notify Client of any such claim of which it becomes aware and Client agrees that Zeeto will have sole and exclusive control over the defense and settlement of any such third-party claim, with Client’s participation at Zeeto’s sole discretion.
The obligations of Client under this clause shall survive termination or expiration of this Agreement, even if Client declares bankruptcy or insolvency. Client acknowledges that the indemnification obligations under this section constitute a crucial component of this Agreement and that Zeeto would not have entered into this Agreement if such indemnification provisions did not exist.
16. Zeeto Regulatory Obligations. Client is a Business and Zeeto is a Service Provider for purposes of the CCPA. Zeeto shall not: (a) retain, use, or disclose Client’s Personal Information except as permitted in the Agreement or under the CCPA including retaining, using, or disclosing Client’s Personal Information for a commercial purpose other than as permitted in the Agreement; or (b) sell Client’s Personal Information. All defined terms used in this section not otherwise defined in the Agreement shall have the meanings ascribed to them in the CCPA.
17. Miscellaneous.
a. Entire Agreement, Amendments. This Agreement, including all related Service Orders, is the entire agreement relating to Client’s use of the Services and supersedes all prior or contemporaneous oral or written agreements and representations between the parties, including any Cloud Services Agreement . Zeeto may make amendments to the Agreement from time to time. Client will be notified of any such changes, and Client’s continued use of the Platform will be considered acceptance of the amendments.
b. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.
c. Injunctive Relief. The Client acknowledges and agrees that, due to the unique nature of intellectual property, licenses, and Zeeto’s Confidential Information, there may be no adequate remedy at law for Zeeto as a result of any breach of the Client’s obligations hereunder, that any such breach may allow the Client or third parties to unfairly compete with Zeeto resulting in irreparable harm to Zeeto, and therefore, that upon any such breach or any threat thereof, Zeeto shall be entitled to seek appropriate equitable relief, without the requirement of posting a bond or other security, in addition to whatever remedies we might have under this Agreement or at law.
d. Assignment. Client may not assign or transfer any of your rights under this Agreement without the prior written consent of Zeeto. Zeeto may transfer our rights under this Agreement without the prior written consent of Client.
e. Relationship of the Parties. The Parties are independent contractors without the authority to bind the other party. There is no relationship of partnership, joint venture, agency, employment, or franchise relationship between the Parties as a result of this Agreement.
f. Non-Waiver/Severability. The failure to enforce any performance by the other Party of any provision of this Agreement or to exercise its right under this Agreement shall not be deemed a waiver or relinquishment of such right, and no breach shall be considered excused unless such waiver is in writing. If any portion of this Agreement is ruled to be unenforceable, the remaining portions of the Agreement shall remain in full force and effect.
g. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of California without regard to its conflict of laws principles. The Parties submit to the exclusive jurisdiction of the federal or state courts in San Diego, California, and Client consents to the personal jurisdiction in those courts.
h. Force Majeure. Neither Party will be liable for any inability to perform for reasons beyond its reasonable control, such as inclement weather, natural disaster, act of war or terrorism, governmental action, power outages, or Internet disturbance. The Impacted Party shall immediately give notice of the force majeure event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such force majeure event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In addition, the occurrence of a force majeure event shall not relieve Client from its obligations, as described in the Payment section of this Agreement, to timely pay Zeeto any fees incurred prior to the force majeure event.
i. Notices. All notices under this Agreement from one Party to the other will be sent in writing and transmitted via certified mail, courier, or email to the addresses set forth in the Platform, or any other address as designated by Client. Zeeto may contact Client regarding any service announcements, updates, or other information.
j. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document and delivered to the other by means of electronic transmission.
Zeeto and Client have caused these Terms of Use to be duly executed. The Client expressly represents and warrants that he/she has the authority to execute and bind the company to these Terms of Use.
Service Provider – Cal. Civ. Code 1798.105 (3) – A service provider shall cooperate with the business in responding to a verifiable consumer request, and at the direction of the business, shall delete, or enable the business to delete and shall notify any of its own service providers or contractors to delete personal information about the consumer collected, used, processed, or retained by the service provider or the contractor.
A service provider shall not be required to comply with a deletion request submitted by the consumer directly to the service provider to the extent the service provider has collected, used, processed, or retained the consumer’s personal information in its role as a service provider to the business. Businesses are exempted from the requirements of the CCPA as long as they meet the definition of a Service Provider.
Service Provider Definition – a legal entity that:
(1) only processes information on behalf of a business;
(2) to which the business discloses a consumer’s personal information for a business purpose pursuant to a written contract;
(3) provided that the contract prohibits the entity from:
(a) Retaining, using, or disclosing the personal information for any purpose other than for the business purposes specified in the contract for the business
(b) Retaining, using, or disclosing the information outside of the direct business relationship between the service provider and the business;
(c) Combining the personal information that the service provider receives from the business, provided that the service provider may combine personal information to perform any business purpose
DATA PROCCESSING ADDENDUM
Client and ZeetoGroup, LLC (“Zeeto”) entered into an agreement under which Zeeto had agreed to provide certain Services in accordance with such agreement (the “Agreement”). This Data Processing Addendum (the “DPA”) is incorporated into and forms part of the Agreement and shall be effective as of the effective date of the Agreement. If there is any conflict between this DPA and the Agreement, this DPA will control. Defined terms set forth in the Agreement apply to the interpretation of this DPA.
1. Definitions. Capitalized terms used but not defined within this DPA shall have the meaning set forth in the Agreement. The following definitions and rules of interpretation apply in this Agreement:
a. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
b. “CCPA” means the California Consumer Privacy Right Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), the CCPA Regulations (Cal. Code Regs. tit. 11, §§ 999.300 to 999.337), and any related regulations or guidance provided by the California Attorney General. Terms defined in the CCPA, including Personal Information and business purposes, carry the same meaning in this Agreement.
c. “Contracted Business Purpose” means the Services performed by Zeeto on behalf of Client, as described and defined in the Agreement.
d. “Client Personal Information” means the Personal Information maintained by Client and processed by Zeeto on behalf of Client in connection with Zeeto’s provision of the Services.
2. Scope of this Addendum. This Addendum reflects the requirements of the CCPA and is made to describe Zeeto’s role as a Service Provider under the CCPA. The parties acknowledge and agree that in its role as a Service Provider, Zeeto may receive, process, and disclose certain Client Personal Information to Client in performing the Contracted Business Purpose.
3. Use of Client Personal Information. Zeeto will only collect, use, retain, or disclose Client Personal Information for the Contracted Business Purpose. Zeeto will not collect, use, retain, disclose, sell, or otherwise make Client Personal Information available for any purpose unrelated to the Contracted Business Purpose. In the event the law requires Zeeto disclose Client Personal Information for a purpose unrelated to the Contracted Business Purpose, Zeeto shall inform Client of the legal requirement. Zeeto may aggregate, deidentify, or anonymize Personal Information in a manner that renders the information incapable of being associated with an individual. Zeeto may use such aggregated, deidentified, or anonymized Personal Information for its own business purposes.
4. Verifiable Consumer Requests. Zeeto will reasonably cooperate and assist Client with meeting Client’s CCPA compliance obligations and responding to CCPA-related inquiries, including responding to verifiable consumer requests, taking into account the nature of Zeeto’s processing and the information available to Zeeto. Zeeto shall notify Client without undue delay if Zeeto receives a request, notice, or communication directly or indirectly from a consumer relating to either party’s compliance with the CCPA. Zeeto may direct the consumer to submit their request directly to Client.
5. Applicable Law. Both parties will comply with all applicable requirements of all laws and regulations of the United States of America, including the CCPA, when collecting, using, retaining, disclosing, or processing Personal Information. Client represents and warrants that it and its Affiliates have provided the applicable privacy notices as required under the CCPA. Zeeto may update this DPA from time to time as a result of changes to applicable law.
Last Updated: February 21, 2022