Supplementary Terms & Conditions - Zeta API Click-Through Agreement
I. Additional Requirements Related to Your Use of the Zeta APIs
You must comply with all applicable laws, rules and regulations, all third-party rights and all applicable Zeta policies in connection with your use of the Zeta API Data, Zeta APIs and Zeta API Specifications, including with respect to privacy and data security. All information you provide in connection with your use of the Zeta APIs must be free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any Zeta system data or information. You warrant that any API client developed by you will be developed, tested, and reviewed for security issues by staff who have had appropriate training in secure programming within the previous 12 months, and your API Client will comply with industry security standards. You will make the API Client available to Zeta for inspection and review upon reasonable notice and, if you are managing and accessing a Zeta commercial account on behalf of an Account Owner, you will provide Zeta with a list of Account Owners that you are managing using the API Client. Zeta and its Affiliates will not have any liability for any suggestions made to you (or the Account Owner(s)) in connection with the use of the Zeta APIs, Zeta API Specifications and/or API Client, nor for any changes made based on such suggestions. You agree that any such suggestions shall become the intellectual property of Zeta, and you assign all right, title and interest in any intellectual property rights in or associated with such suggestions to Zeta.
You represent and warrant that you will not (and will procure that your Authorized Users do not) use the Zeta APIs in connection with, or to promote campaigns, advertisements or other materials or content containing: (i) content that is an invasion of privacy, degrading, defamatory, libelous, unlawful, profane, obscene, pornographic, hate material or discriminatory; (ii) content that promotes any illegal or fraudulent activity, including, without limitation, the promotion of gambling where prohibited, illegal substances, software piracy or hacking, or invalid advertising traffic; (iii) content that infringes the personal rights or intellectual property rights of any third party; (iv) content, links or codes that promote or reference software piracy and/or activities generally understood as Internet abuse, including the sending of unsolicited bulk messages or the distribution or use of spyware, Malware (as defined below), worms, Trojan horses, time bombs, cancelbots, bots or other code that generate fraudulent or invalid advertising traffic, corrupted files or similar software; or (v) content that it knows or reasonably should have known to be false, fraudulent or misleading, including content, links or codes that facilitate the creation or use of fraudulent or invalid advertising traffic. “Malware” means software or applications, or websites associated with software or applications, that (A) may be used to disrupt, damage, take control of, misuse, or otherwise use or disable a computer or computer system or operation; (B) impermissibly views or collects information; (C) access computer systems to display or distribute unwanted or illicit advertising, content or software; or (D) violates the written policies of any advertising exchange or publisher that you may have access to through the Platform, as such policies may be updated and published from time to time. You shall use a reputable third-party Malware detection vendor to scan all ads that are served to websites in connection with your use of the Services. Without limiting any of its rights under this Agreement, Zeta may immediately suspend or terminate your access to the Services without notice and may terminate this Agreement or any Order without any liability to you, if you fail to comply with this Section III.b.
Account Owner Control
If you are managing and accessing a Zeta commercial account on behalf of an Account Owner, you acknowledge and understand that any Account Owner may disassociate its Zeta commercial account(s) from your services and prevent you from using its Zeta Credentials to access its Zeta commercial account(s) at any time without notice to you. You agree to provide an easy to use, accessible, conspicuous and readily available method for disabling you or your API Client.
Zeta Brand Use
Unless otherwise set forth in a separate agreement between you and Zeta, and except as may be necessary in your API Client to textually reference Zeta, you will not use any Zeta or Zeta Affiliate name, trademark, logo, service mark and/or trade name (“Mark” or “Marks”) in connection with this Agreement. Upon Zeta’s request, you will remove or replace any Mark immediately but no later than three (3) business days after receiving such request. Except as otherwise provided herein, all use, display or reproduction of any Mark must be pre-approved by Zeta in writing and in accordance with this Agreement and any Zeta Brand Guidelines that Zeta may provide to you from time to time. Your use of the Marks does not confer or imply any ownership, goodwill or other rights in the Marks. You acknowledge that all right, title and interest in the Marks and the goodwill pertaining thereto automatically vests in Zeta or its applicable Affiliate, and at all times will remain owned by and in the name of Zeta or its applicable Affiliate. You will not, at any time, in any jurisdiction, challenge or assist third parties in challenging Zeta’s rights in any of the Marks, nor attempt to register or use any of the Marks or any word, symbol, device or combination thereof confusingly similar to any Mark. You will not alter or remove any identification, trademark, copyright, or other notice from any aspect of the Zeta APIs or Zeta API Specifications.
Display of Content
Information obtained via the Zeta APIs must be: (i) displayed only within the API Client; and (ii) disclosed only to the Account Owner to which such information directly pertains, consistent with this Agreement and any other applicable agreement, or solely with respect to information owned by the Account Owner or that the Account Owner is authorized to disclose, to other third parties that the Account Owner has authorized to receive such information; and (iii) referenced as originating from Zeta and displayed together with a timestamp clearly indicating the time and date the information was obtained from Zeta.
You must display a prominent disclosure on the API Client that the Account Owner’s Zeta Credentials, account information and API Data are communicated to and from Zeta and its Affiliates via the public Internet. In addition, you must display a statement substantially similar to the following statement on the same screen as, and immediately above, every place within the API Client where a user enters, edits or modifies the Account Owner’s Zeta Credentials:
You will not describe yourself and/or the API Client as being in any way endorsed by Zeta, including describing the API Client as “endorsed,” “certified,” “authorized,” “preferred,” “selected” or “chosen” by Zeta except that you may, upon Zeta’s prior written approval and provided that you are in compliance with this Agreement, describe the API Client as a “Zeta- approved third party service” or “Zeta-approved third-party application.” You will not refer to your relationship with Zeta or any of its Affiliates as a partnership or alliance of any kind, but you may describe your relationship with Zeta as an “agreement.”
II. Zeta’s Rights and Obligations Related to the Use of the Zeta APIs
No Guaranteed Access to Zeta APIs
Zeta may suspend or terminate your access to the Zeta APIs, or modify any of the Zeta API Specifications or methods of accessing the Zeta APIs, for any or no reason at any time without notice in Zeta’s sole discretion. You acknowledge that you are solely responsible for all necessary data backup. This Agreement does not create any right to rely upon the continued availability of and/or access to the Zeta APIs and/or the Zeta API Specifications. You expressly waive any right to assert any estoppel claim, contract claim or any other legal claim relating to the availability of and/or access to the Zeta APIs and/or the Zeta API Specifications. Zeta may, in its sole discretion, cease providing the current version of any Zeta API, at which point the current version of the applicable Zeta API will be deprecated (the “Deprecated Version”). Zeta will attempt to issue an announcement if the current version of a Zeta API will be deprecated. For a short period of time after such announcement (the “Deprecation Period”), Zeta may use commercially reasonable efforts to continue to operate the Deprecated Version and to respond to problems with the Deprecated Version deemed by Zeta to be critical, but unless otherwise announced by Zeta, no new features will be added to the Deprecated Version during the Deprecation Period.
Zeta has the right (but not the obligation) to monitor any Zeta API activity for any lawful purpose, including to ensure compliance with this Agreement and/or to improve Zeta’s products and services. You will not interfere with or attempt to interfere with such monitoring or otherwise obscure from Zeta your Zeta API activity. Zeta may use any technical means to overcome such interference.
Usage and Quotas
Zeta may, at any time and in its sole discretion, set a quota on your usage of the Zeta APIs or on the amount of data you can transfer using the Zeta APIs. You will not exceed any such quotas, or take any action designed to or that has the effect of, increasing or avoiding such usage quotas. Zeta may also impose limits on certain features and services or restrict your access to parts or all of the Zeta APIs, the Zeta Platform or Zeta websites without notice or liability.
Technical Support and Training
In its sole discretion, Zeta may elect to provide you with technical support for the Zeta APIs and/or Zeta API Specifications, and may terminate or modify such support at any time without notice or liability to you. You agree to ensure that any of your personnel who market the API Client will become and remain knowledgeable about the Zeta APIs and the API Client.
Zeta may identify you as a user of the Zeta APIs, and in furtherance of such identification may use your name and/or logo in presentations, marketing materials, customer lists, financial reports, website listings of customers, research and marketing case studies and other promotional activities. Neither party will issue a press release, public commentary or statement, or make any other public announcement regarding the existence, subject matter or terms of this Agreement without the other party’s prior express written consent as to the issuance and substance of such release or announcement.
You hereby acknowledge that Zeta has the right to use and disclose data derived from your use of the Zeta APIs: (i) as part of Zeta’s business operations, to use and disclose aggregate statistics obtained and/or derived in connection with your use of the Zeta APIs in a manner that prevents individual identification of you or your information (or the Account Owner’s, as applicable); (ii) to operate, manage, test, maintain and enhance the Zeta APIs and other Zeta products, programs and/or services; (iii) to protect the Zeta APIs from what, in Zeta’s reasonable determination, is a threat to the Zeta APIs, Zeta Platform or other Zeta products, programs and/or services; and/or (iv) if required by court order or law or required or requested by any governmental agency.
Notwithstanding anything to the contrary in this Agreement, Zeta has the right to develop, create, obtain, modify, transfer, provide and/or distribute, whether privately, commercially, or otherwise, any and all applications (including third-party applications) in connection with Zeta’s commercial programs and/or the Zeta APIs (“Competing Applications”), regardless of the means, methods, applications, materials or processes employed by Zeta, and regardless of whether such Competing Applications include some or all the functionality of the API Client or the Zeta APIs. Zeta and its Affiliates will not be subject to, nor liable for, any claims in connection therewith.
III. General Terms and Conditions
Subject to the termination provisions set forth herein, the Term of the Agreement shall be an initial period of one year from the Effective Date (the “Initial Term”), which shall automatically renew for successive one-year periods (each, a “Renewal Term”) unless either party provides the other party with written notice not to renew this Agreement. “Term” means the Initial Term and all Renewal Terms collectively.
Zeta may terminate your access to the Zeta APIs without notice if you fail to comply with any provision of this Agreement, and this Agreement terminates simultaneously with the termination of your access. Zeta reserves the right to terminate this Agreement or discontinue the Zeta APIs or any portion or feature thereof (including the Zeta API Specifications) for any or no reason and at any time in its sole discretion without incurring any liability. You may terminate this Agreement by sending written notice as detailed in this Agreement. Upon any termination or notice of any discontinuance, you will immediately: (i) stop and thereafter desist from using the Zeta APIs; (ii) stop distributing and developing the API Client(s)’s access to or use of the Zeta APIs; (iii) delete and/or return all Zeta API Specificationsin your possession or control (including from the API Client(s) and from your servers); and (iv) if requested by Zeta, certify in writing as to such destruction or return. Zeta may independently communicate with any Account Owner whose accounts are associated with the Zeta Credentials, including to provide notice of the termination of your right to use the Zeta APIs and any resulting consequences.
All provisions that by their nature extend past the termination or expiration of this Agreement will survive and will continue to bind each party in accordance with their terms, including Sections I, II.b and II.c, III.a-d, IV, and V.
You will not disclose Zeta Confidential Information to any third party without Zeta’s express prior written consent, provided, however that you may disclose Zeta Confidential Information only to your employees, representatives and agents who have a reasonable need to know such information and who are bound to keep such information confidential in a manner consistent with this Agreement. “Zeta Confidential Information” means any information disclosed to you by Zeta, either directly or indirectly, in writing, orally, or by inspection of tangible objects, including (i) the Zeta Platform and all Zeta technology, programming, software specifications, materials, guidelines and documentation relating to the Zeta APIs; (ii) the Zeta API Specifications; and (iii) any other information designated by Zeta as “Confidential” or “Proprietary” or a similar designation, or any other information which should reasonably be understood to be confidential or proprietary to Zeta. The obligations set forth above will not apply to Zeta’s Confidential Information that you can document is generally available in the public domain (other than through a breach of this Agreement). You will take all measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, Zeta Confidential Information. If required by law to disclose Zeta Confidential Information, you may do so provided that: (i) you give us prompt written notice of such requirement prior to such disclosure; (ii) at Zeta’s request, you assist us in obtaining an order protecting Zeta Confidential Information from public disclosure; and (iii) any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. All Zeta Confidential Information will remain Zeta’s property, and all documents, electronic media, and other items containing or relating to any Zeta Confidential Information must be delivered to Zeta, destroyed, or uninstalled immediately upon Zeta’s request, or upon termination of this Agreement.
You will indemnify, defend and hold harmless Zeta and its Affiliates, and its and their officers, directors, agents, employees, and permitted successors and assigns from and against any and all third-party claims, actions, losses, damages, liability, costs and expenses (including reasonable attorney’s fees), arising out of or in connection with: (i) your or your Authorized Users’ use of the Zeta APIs, Zeta Credentials, API Data or Zeta API Specifications; (ii) any breach by you or your Authorized Users of this Agreement; (iii) your development, use, operation or distribution of the API Client, including any related infringement of any third-party proprietary rights; and/or (iv) your or your Authorized Users’ management of or access to an Account Owner’s Zeta commercial account (collectively, “Claims”). You will be solely responsible for defending any Claim against Zeta, subject to Zeta’s right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against Zeta, provided that you will not agree to any settlement that imposes any obligation or liability on Zeta without its prior express written consent.
Disclaimer and Limitation of Liability
ZETA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. ZETA PROVIDES THE ZETA APIS, ZETA PLATFORM, ZETA CREDENTIALS, AND ZETA API SPECIFICATIONS ON AN “AS IS” BASIS. WITHOUT LIMITING THE ABOVE, ZETA DOES NOT WARRANT THAT THE ZETA APIS WILL BE ERROR-FREE OR AVAILABLE WITHOUT INTERRUPTION OR BUGS. ZETA AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF OR INTERRUPTED ACCESS TO INFORMATION, DATA OR OTHER SIMILAR DAMAGES, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE ZETA APIS, ZETA CREDENTIALS AND ZETA API SPECIFICATIONS ARE MADE AVAILABLE PRIMARILY AS A CONVENIENCE TO YOU AND, AS SUCH, YOU AGREE THAT THIS AGREEMENT REPRESENTS A FAIR ALLOCATION OF RISK BETWEEN THE PARTIES.
Account Owner Disputes
If you are managing and accessing a Zeta commercial account on behalf of an Account Owner, and such Account Owner claims that (i) you are not its authorized agent and it is not legally bound to Zeta and/or its Affiliates for charges to its commercial account made as a result of your actions; or (ii) it has not expressly authorized changes made by you to its commercial account, you will be liable (jointly and severally with the Account Owner) for all charges resulting from changes made by you to the Account Owner’s commercial account.
Legal notices should be sent to either party at the address indicated at the signature block above. Legal notices should be sent by (i) certified first-class mail return receipt requested, (ii) a national overnight carrier or (iii) personal delivery and will be deemed received upon delivery. Irrespective of the delivery method, notices to Zeta should include a copy to legal@Zeta.com. Notices to you will include a copy sent to the email address provided above.
Governing Laws, Jurisdiction, Venue
This Agreement is governed by the laws of the State of New York. You and Zeta consent to personal jurisdiction for all disputes in the Courts of New York State located in New York County, or the United States District Court for the Southern District of New York.
You represent, warrant and covenant that you are a business, not a consumer, and have the rights, authority, and any required permission and consent to enter into this Agreement. Any claim against Zeta and/or its Affiliates will be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party. This Agreement represents the entire understanding between the parties and supersedes all prior agreements, oral or written, relating to the subject matter hereof. You and Zeta are independent contractors and nothing in this Agreement will give you the right, power or authority to create any obligation or responsibility on behalf of Zeta. Except as otherwise set forth in this Agreement, neither you nor Zeta will have any right, power, or authority to create any obligation or responsibility on behalf of the other and this Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Notwithstanding the foregoing, you acknowledge and agree that the Zeta Affiliates will be third-party beneficiaries to this Agreement and will be entitled to directly enforce, and rely upon, any provision in this Agreement which confers a benefit on, or rights in favor of, them. You may not assign, sublicense, or transfer this Agreement or any right or duty under this Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of this Section will be void and of no force or effect. Zeta and its subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time to time this Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity, such as to Zeta Affiliates. No failure or delay on the part of a party in exercising any right, power or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction. As used in this Agreement, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity. The section headings and subheadings contained in this Agreement are included for convenience only, and will not limit or otherwise affect this Agreement.