1. Intellectual Property Rights
ZenasMR shall limit the collection of personal information to that which is necessary for the purposes identified. ZenasMR shall clearly specify the purposes for which personal information is collected at or before the time of collection.
All intellectual property rights in the Respondent Screening Data and Zenasmr Platform belong exclusively to Zenasmr and its licensors.
2. Use of Personal Information
Zenasmr agrees not to use or gather any personal information of an end user in its performance of the Services hereunder without Customer’s express written approval.
In no event shall Zenasmr drop any cookies, use device tracking or fingerprinting or any other method to collect any data other than that which has been disclosed to Customer in writing in advance.
In no event shall Zenasmr insert any third party tags or other tracking mechanisms in connection with the Services other than that which has been disclosed to Customer in writing in advance.
3. Prohibition on End User Targeting
Zenasmr will not use the Customer Data, Survey Data or Proof Data to tag end users involved in the Services and later target/retarget them in advertising campaigns, as a result of those identifying tags.
For the avoidance of doubt, Zenasmr will not use the Proof Data, Survey Data or Customer Data to target end users on Zenasmr’s or Customer’s properties.
4. Definitions
- Proof Data: Data, metadata, or other information derived from the matching of Respondent Screening Data to data collected as a result of tracking any online effort, campaign, website, or project defined on the SOW, excluding Customer Data and Survey Data.
- Survey Data: Any questions or answer choices submitted or prepared by Customer as well as all responses to those questions off the Zenasmr Platform.
- Respondent Screening Data: All data supplied, indexed, or otherwise transmitted by suppliers or provided by respondents on or through the Zenasmr Platform for the purpose of qualifying each respondent to complete a survey, stored by Zenasmr in the public cloud as no-name data.
5. Invoicing and Payments
At the end of the first calendar month in which the campaign begins, Zenasmr will invoice Customer via the Billing Contact for the full project amount, as defined above in the SOW.
The Parties shall execute a Change Order if the project differs materially from the originally agreed-upon plan.
Customer is responsible for any additional fees agreed to in advance in writing associated with a Change Order.
If Customer believes any invoice under this agreement is incorrect, they must contact Zenasmr within 30 days of the invoice date.
Payment is due to Zenasmr within 60 days of the invoice date.
Zenasmr understands and agrees that Customer is acting as agent for Advertiser and, as such, is responsible for payments only to the extent that funds for such Zenasmr charges have been paid to Customer by Advertiser.
For sums not cleared to Customer, Zenasmr agrees to hold the Advertiser solely liable.
6. Termination
In addition to any other right or remedy provided by applicable law or these Terms, either Party has the right to terminate the SOW with fourteen (14) days advance written notice, provided that Zenasmr may not terminate an active SOW until the Services have been fully performed or delivered by Zenasmr, acting reasonably.
7. Representations; Indemnification
Zenasmr represents and warrants that the execution, delivery and performance of this Agreement by Zenasmr does not violate any existing agreement to which Zenasmr is a party or by which Zenasmr is bound.
8. Confidentiality
As used herein, “Confidential Information” means any and all information, regardless of whether it is in tangible form, disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is either (a) marked as confidential or proprietary, (b) identified in writing as confidential or proprietary within thirty (30) days of disclosure, or (c) would be reasonably understood by the Receiving Party as the Disclosing Party’s Confidential Information at the time of disclosure.
It is expressly understood that the Customer Data and Survey Data shall be the Confidential Information of Customer, and the Proof Data shall be the Confidential Information of both parties.
Information shall not be deemed Confidential Information if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) 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 ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information.
Each Receiving Party shall use reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information.
Confidential Information may be disclosed only to: (A) such employees and agents of the Parties as may have a need to know such information in the course of their duties; or (B) legal or financial advisors on a need-to-know basis.
In each case, such recipients shall be bound by ethical duties or confidentiality obligations at least as restrictive as those set forth herein.
Confidential Information may also be disclosed if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable written notice to the Disclosing Party and uses commercially reasonable efforts to cooperate with the Disclosing Party’s attempt to obtain a protective order).
Upon written request of the Disclosing Party, Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information that are in the possession of Receiving Party.
9. LIMITATIONS OF WARRANTIES AND LIABILITIES
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE SET FORTH HEREIN, ZENASMR DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SYSTEM INTEGRATION OR COMPATIBILITY.
WITHOUT LIMITING THE FOREGOING, ZENASMR DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED, OR ERROR-FREE.
ZENASMR’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
ZENASMR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS BEYOND ITS CONTROL, PROVIDED THAT IN NO EVENT SHALL CUSTOMER BE REQUIRED TO PAY FOR ANY SERVICES NOT DELIVERED AS A RESULT OF SUCH PROBLEMS.
10. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE SERVICES OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THIS AGREEMENT BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID BY CUSTOMER FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE THE CAUSE OF LIABILITY AROSE
EACH PARTY SHALL USE REASONABLE EFFORTS TO MITIGATE ITS DAMAGES OR LOSSES UNDER THIS AGREEMENT SUBJECT TO THE LIMITATIONS SET FORTH HEREIN.
11. Severability
If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
12. Headings
The headings in these Terms are for reference only and shall not limit or otherwise affect any of the meanings or interpretations of these Terms.