Effective as of February 7, 2022
orders (“Service Orders”) are entered into as of February 7, 2022 (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:
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, without Zeeto’s prior consent in writing. This includes, but is not limited to, sending text/SMS messages to those sales leads.
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:
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.
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 thisAgreement 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 OFANY 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 firstname.lastname@example.org 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 processor 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, and attorneys’ fees arising out of or related to: (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 theCampaigns; and/or (c) Client’s use of the Services.
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.