- These General Terms and Conditions (“Agreement”) govern the use of the Platform and Services and are incorporated by reference to the order form signed between the customer and the relevant Kenshoo entity (“the “Order Form”) as defined in the applicable Order Form (“Customer” and “Kenshoo”, respectively), and will be dated as of the Service Start Date on the Order Form (the “Effective Date“). By installing, uploading or otherwise using the Platform and Services Customer agrees to these terms and conditions. In the event of a conflict between these terms, the Order Form, or the applicable Kenshoo Package, the order of precedence shall be as follows: (1) the Order Form; (2) the applicable Kenshoo Package; (3) the Kenshoo General Terms and Conditions. Customer and Kenshoo will be also referred to as a “Party” and collectively as the “Parties”.
- The Services. Subject to the terms of this Agreement, Company will provide Customer digital advertising and marketing optimization technology, which will be provided on a subscription basis, through its proprietary platform (“Platform”), enabling the use of each and the combination (if applicable) of Kenshoo Search, Kenshoo Social, Kenshoo Local Search/Social, Kenshoo eComm, and any other related service and additional services that Kenshoo may offer including any third party services that may vary from time to time, as more fully described in the applicable Order Form and this Agreement (the “Services”). To use the Services, Kenshoo will provide you the necessary means of identification and authentication. From time to time, Kenshoo may establish and require additional or alternative identification and authentication means and will notify you in advance of such change. It is Customer’s responsibility for the use and confidentiality of Customer’s Users’ credentials to access and use the Platform. During the term of this Agreement, Kenshoo will provide Customer technical support for the Services in accordance with the applicable Kenshoo Package as set forth in Kenshoo’s website (http://kenshoo.com/packages) and will include troubleshooting response (by telephone, chat or email), receipt of minor updates and bug fixes and patches for reproducible and verifiable errors. Customer will enable Kenshoo to provide technical support to Customer’s clients, where required. Customer will cooperate with Company and provide it with all necessary information and assistance for the integration of the Services into Customer’s systems, including its access information to each publisher account and Customer hereby authorizes Kenshoo to access such accounts for the purpose of the on-going operations of the Platform and Customer’s account therein. Any additional work which is not part of the Services (including but not limited to additional training, custom integration/tracking, retrieval of data or analytics) will be itemized and billed separately according to the rates detailed in the applicable Order Form.
- Right to Use the Services. Except as expressly provided in this Agreement, Kenshoo grants to Customer, during the term of this Agreement, a limited, non-exclusive, non-transferable, revocable and non-sublicensable right to access and use the Platform for the sole purpose of utilizing the Services. Customer may not, directly or indirectly or by itself or through any other person or entity: (i) use, rent, lease, sell, transfer (by sublicense, assignment or otherwise), time share, modify, reproduce, copy, make derivative works from, distribute, publish, use to provide service bureau services, or publicly display the Platform and/or any part thereof, other than for the purpose of capabilities demonstration for its clients; (ii) misuse, reverse engineer, decompile, or otherwise attempt to discover the source code of the Platform; (iii) represent that it possesses any proprietary interest in the Platform and/or Services; and (iv) except as specifically permitted hereunder, use the name, trademarks, trade-names, and logos of Kenshoo. All rights not specifically granted hereunder are reserved to Kenshoo.
- Prohibited Uses. Customer will not: (i) use the Services in any manner that is not explicitly permitted under the terms herein; (ii) use the Services to transmit any unsolicited commercial communications in violation of applicable laws; (iii) use the Services in a way or for any purpose that infringes or misappropriates any third party’s intellectual property or personal rights, including without limitation, the right to privacy and the right of publicity; (iv) use the Services, including the upload of content to the Services, for any activity that will be deemed, or encourages activity that will be deemed as discriminating, threatening, harassing, anti-competitive, misleading, libellous, defamatory, obscene, pornographic, profane or otherwise objectionable; (v) use the Services to store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, or otherwise engage in unfair or deceptive practices; (vi) interfere with or disrupt the integrity or performance of the Services; (vii) attempt to gain unauthorized access to the Services or their related systems or networks, or systematically access the Services using ‘bots’ or ‘spiders’; (viii) use the Services to develop or offer a similar services or have them used to engage in competition with Kenshoo or in any other way; and (ix) use the Services is any way that is not permitted under applicable publishers’ terms and conditions.
- Fees and Taxes. Customer will pay Company the then applicable non-refundable fees described in the Order Form for the Services and any additional work in accordance with the terms therein (the “Fees”). Fees due hereunder will be due and payable within thirty (30) days of the end of the relevant month as detailed in the table below. Fees will not be prorated for any partial month of Services, including for termination pursuant to the terms herein. Any dispute over an invoice must be filed by the Customer no later than 180 days from the date of which invoice was issued. Customer will provide Company with complete and accurate billing and contact information including a valid email address for receipt of invoices. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Unless otherwise stated, Kenshoo’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). If any such Taxes are required to be withheld, Customer will bear the amount withheld and pay an amount to Kenshoo such that the net amount payable to Kenshoo after withholding of taxes will equal the amount that would have been otherwise payable under this Agreement. If Kenshoo has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Kenshoo with a valid tax exemption certificate authorized by the appropriate taxing authority. Kenshoo reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). As of the execution date of the applicable Order Form, Kenshoo does not charge Customer with third parties’ API costs, associated with the usage of the Kenshoo Services. Kenshoo maintains the right to charge such costs from Customer in correlation with third party’s API costs imposed on Kenshoo in relation to the provision of the Services. If the API costs will exceed 5% of the average Fees prior to the application of the API costs, then Customer will be entitled to terminate the Agreement with a 30 days’ written notice.
To Kenshoo, Inc.: Remit by WIRE/ACH:
Silicon Valley Bank
3003 Tasman Drive
Santa Clara, CA, 95054
Checks sent to Lockbox Address:
Dept. LA 23651
Pasadena, CA 91185-3651
Remit by Credit Card:
subject to 2.5% checkout fees according to applicable law.
To Kenshoo (UK) Ltd.: Remit by WIRE/ACH:
Bank wire transfer – to be wired to:
Kenshoo (UK) LTD
Bank name: Silicon Valley Bank
Sort code: 621000
GBP Account # 20118449
EUR Account # 20118457
USD Account # 20118465
Checks to be sent to 22 Percy Street, 9th Floor, London W1T 2BU, United Kingdom
To Kenshoo Ltd.
Bank wire transfer – to be wired to:
Bank name: Bank Hapoalim
Sort code: IL10-0124-1200-0000-0063-360
Account number: 12-412-63360
To Kenshoo Brazil:
Kenshoo Brasil Plataforma de Marketing Ltda.
Bank name and number: Banco Citibank S/A -745
Agency number: 001
Account number: 38128853
To K Apps Ltd.
Remit by wire to:
IBAN – IL54-0108-6400-0003-5480-021
Bank name: Bank Leumi Le Israel B.M.
Branch Address: 11 Galgalei Haplada, Herzliyah
* Each Party shall bear its own bank fees related to the payments herein
- Intellectual Property and Customer Data. All rights, title and interest in and to the Services and Platform are and will remain at all times, owned by, or licensed to Kenshoo. This Agreement provides You a right to use the Platform and Services and does not provide You any ownership rights. Any non-public data received from You, including personal data will be and remain, as between you and Kenshoo, your sole and exclusive property. You provide Kenshoo permission to use such data, to provide you the Services, and you represent that you obtained all rights and permissions necessary for this purpose. Customer acknowledges that Kenshoo is under no duty to retain such data for periods extending beyond three years after the termination or expiration of the applicable Order Form.
- Service Data. Kenshoo captures, monitors and receives metrics and other data related to Customer and Customer’s clients use of the Services, and draws insights and compile statistical and performance data from Customer Data on an aggregate form, (collectively: “Service Data”) for operational purposes and as part of the services that Kenshoo provides, including but not limited to: (i) provision or making available of aggregate statistics about the Services in a manner that will not allow identification of Customer or Customer’s end-users; (ii) perform its obligations under this Agreement; (iii) operate, manage, audit, maintain and support the Platform and Services; and (iv) protect the Platform and Services from threats; (v) if required by court order or law or requested by any governmental agency; and (vi) as otherwise expressly authorized by Customer.
- Audience Data. If the applicable Order Form includes Audience Data Services, Customer: (i) undertakes to comply with applicable specifications and requirements by the applicable Publishers and data marketing service providers (in this section 8: “Providers”) concerning the use of Audience Data (for Oracle Audience Data, and in addition to any other undertakings, the Customer undertakes to comply with the Rider for Oracle Audience Data which is available at Rider-Template-for-Oracle-Audience-Data, and if applicable, the applicable Providers’ advertising-related guidelines and requirements and to provide Kenshoo with all necessary and timely assistance, materials, documentation and other relevant support in relation to any inquiry or inspection conducted by a Provider concerning Kenshoo’s or Customer’s use of the Audience Data; for the purpose of this Agreement, “Audience Data” means data that Kenshoo uploads on behalf of Customer to an online advertising management platform, for the purpose of performing advertising campaigns on such platforms; (ii) acknowledges that Kenshoo and the Providers are not responsible for determining the best and proper use of the Audience Data; (iii) fully owns or has the authority to use or provide the data that Customer provides for the purpose of generating the Audience Data, that all such data relates to adult residents only, and that Customer will not take any action that would violate applicable local, state or federal law and any applicable regulations or applicable self-regulatory guidelines; (iv) uses Audience Data only through the Platform and does not and will not use the Audience Data for any purpose other than as explicitly agreed herein; (v) will not decompile, disassemble or create derivative works from the Audience Data and will not sublicense, resell, reuse, or otherwise grant any rights in the Audience Data to any third party, including any service bureau; (vi) will refrain from using Audience Data for any impermissible purpose or adverse action as defined by the Fair Credit Reporting Act, for renegotiating or restructuring of debt or for facilitating any advertising for adult entertainment (i.e., pornography), firearms, illegal gambling, or any other product or service that is illegal, including without limitation to discriminate on the basis of race, gender, religion, sexual orientation, or in any way that could be deemed unfair or deceptive under applicable law; (vii) will not use Audience Data for the purposes of employment, credit eligibility, health care or insurance eligibility underwriting and pricing.
- Services Suspension. Kenshoo may suspend, discontinue or disable the Services provided to Customer under the applicable Order Form or any portion thereof, if: (a) one or more of Customer’s payments are thirty (30) days or more overdue and Kenshoo has notified Customer of said payment default; or (b) Customer fails to comply with any of its warranties and obligations under this Agreement.
- Any information provided hereunder by either Party whether furnished before or after the execution of the applicable Order Form, and regardless of the manner in which it is furnished, which is marked as “confidential” or should be reasonably understood by its nature or the circumstances of its disclosure to be confidential or proprietary to such Party (“Confidential Information”) will not be used, disclosed or reproduced by the other Party without the express written consent of the Party providing such information, other than for the performance of such Party’s obligations under this Agreement. Unless otherwise stated herein, the terms of this Agreement (but not its existence and the parties thereto) and specifically the rates set forth in the Order Form will be deemed Confidential Information. “Confidential Information” excludes information which (i) is or has become generally known or available through no act or failure to act by the receiving Party; (ii) is already known or available to receiving Party at the time of receipt as evidenced by then-existing written records; (iii) is hereafter furnished to the receiving Party by a third party, as a matter of right and without restriction on its disclosure; (iv) is disclosed by written permission of the Party for whom such information is confidential; or (v) is required to be disclosed by court order or law. If a Party receives a demand in a legal proceeding that would require the Confidential Information of the other Party to be disclosed, the receiving Party will notify the other Party of the demand and assist the other Party in obtaining a protective order or other relief. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, using at least the same degree of care it uses to protect its own confidential information; (ii) not to disclose the Confidential Information to any third party other than to its, directors, officers, employees, advisors or consultants (collectively, the “Representatives“) on a “need to know” basis only and provided that such Representatives are bound by written agreement to comply with the confidentiality obligations as protective as those contained herein; (iii) not to use or reproduce any of the Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement. The parties’ obligations with respect to Confidential Information will survive the expiration or termination of this Agreement for any reason. For avoidance of doubt, the Kenshoo Platform and all designs, engineering details, and other technical, financial, marketing, commercial and other information pertaining to the Kenshoo Platform shall be considered Confidential Information of Kenshoo. In addition, the Kenshoo Platform may include integration with third party software which software shall be considered Confidential Information of its licensor, and any Customer Data processed via such third party software shall be considered Confidential Information of Customer.
- Customer’s Warranties. Customer acknowledges that each publisher, as applicable to the Services, maintains various terms and conditions, guidelines and policies (“Publisher Terms”) for usage thereof, and Customer hereby warrants that its usage of the Platform and any specifications, images, and content used therein, including when managed by Kenshoo on Customer’s behalf (the “Materials”) will at all times be in full compliance with Publisher Terms, as well as with any laws, international conventions, codes or regulations in any applicable jurisdiction. Customer further represents that it was never, directly or indirectly, in breach of any Publisher Terms or denied by any publisher from using its services, platform and advertising inventory due to a breach of Publisher Terms. Customer will notify Kenshoo without delay upon receipt of any such notice. It is hereby agreed that the breach of this Section 12 by Customer shall be considered a material breach of the Agreement and Kenshoo will have the right to immediately terminate the Agreement. Customer agrees that the Materials that are created or managed through the use of the Services, may be used as Customer’s advertising content. Customer represents and warrants that: (i) it has any and all necessary rights and prerequisite permissions and consents to use the Materials, including without limitation, for advertising purposes; and (ii) the Materials are compliant with applicable law and/or regulations and do not infringe or misappropriate any third party’s intellectual property or personal rights, including Materials provided or created as part of the Transitional Services.
- Kenshoo’s Warranties. Kenshoo represents and warrants that: (i) Kenshoo performs the Services, including Transitional Services, if ordered by Customer, with care, skill, and diligence, in a professional and workmanlike manner and in accordance with applicable professional standards, and causes its employees, subcontractors, and agents to perform accordingly; (ii) Kenshoo follows Publishers’ Terms, which are applicable to Kenshoo’s performance of the Services; (iii) Kenshoo uses measures, procedures and commercially reasonable efforts to operate the Services efficiently and available at all times; (iv) Kenshoo uses industry standard measures and controls, to protect the Platform from viruses, worms, time bombs, Trojan Horses and other harmful or malicious code, files, scripts, agents and programs; (v) Kenshoo does not knowingly utilize code, components and content which infringe third parties’ intellectual property rights. If the Platform is held to, or Kenshoo believes it is likely to be held to infringe a copyright, patent or trade secret, Kenshoo will its sole discretion and expense either: (i) substitute or modify the Platform or any part thereof so that it is non-infringing; or (ii) obtain a license to continue providing the Services.
- Disclaimer of Warranties. Kenshoo does not provide Customer a warranty, including on behalf of any Publisher, with respect to any Publisher services. Kenshoo does not edit or review the accuracy, lawfulness or appropriateness of any Customer information, data and Materials (including such information contained in Customer’s or Customer’s clients’ website) and does not provide Customer with any warranty in relation thereof. Kenshoo will not be held responsible for any acts or omissions of any Publisher or for elements beyond Kenshoo’s reasonable control, including internet outages, cyber-attacks and force majeure events. Kenshoo does not provide Customer with any warranty for statements, Materials, or recommendations in relation to Professional Services and Transitional Services. Kenshoo does not warrant that the Services will operate at all times in an uninterrupted or error-free manner and Kenshoo will not be responsible for any loss or corruption of Service Data, lost communications or any other loss or damage of any kind arising from any telecommunications and internet services. EXCEPT FOR THE EXPLICIT WARRANTIES PROVIDED HEREIN, KENSHOO PROVIDES THE SERVICES ON AN “AS IS” AND “AS-AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, ACCURACY, COMPLETENESS, CORRECTNESS FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. KENSHOO DOES NOT WARRANT THAT THE PLATFORM OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION. No representation or other affirmation of fact, including, without limitation, statements regarding capacity or suitability for use or performance of Services, whether made by Kenshoo’s employees or otherwise, which is not contained in this Agreement, shall be deemed to be a warranty by Kenshoo for any purpose, or give rise to any liability of Kenshoo whatsoever.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, CYBER ATTACKS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID BY CUSTOMER TO KENSHOO DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. The limitations of liability set forth in this section shall apply even if one or more remedies fails of its essential purpose or they conflict with one or more terms or conditions of this Agreement.
- Indemnification. Each Party will indemnify, defend and hold the other Party harmless from and against third party actions or written demands (“Claim“) directly resulting from the indemnifying Party’s breach of its confidentiality obligations under this Agreement and any third party intellectual property rights’ breach. The indemnifying Party will cover direct damages, costs and expenses, including reasonable attorneys’ fees incurred by the indemnified Party in responding to a Claim. The indemnity obligation under this Agreement is subject to the following conditions: (i) the indemnified Party notifies the indemnifying Party in writing about a Claim, promptly after becoming aware of the Claim, and gives the indemnifying Party the right to control and direct the investigation, preparation, defence, trial and settlement of the Claim; (ii) the indemnified Party does not make any admission of liability, agreement or settlement in relation to the Claim without the prior written consent of the indemnifying Party and the indemnity is made actionable upon a final decision of a competent court or a regulatory authority indicating the indemnifying Party’s violations of the applicable law as the cause of the Claim, or subject to the explicit written agreement of the Parties; (iii) the indemnified Party will fully cooperate with the indemnifying Party in the defense and settlement of the Claim, including by providing access to the indemnifying Party and its professional advisors access to the indemnified Party’s documents and records within the indemnified Party’s power of control, for the purpose of assessing, defending and settling the Claim. A Party’s indemnity obligation will not apply if the Claim was caused by: (i) acts or omissions of the other Party, or the other Party’s employees, directors, affiliates, partners, agents, contractors, or other third parties acting jointly or on behalf of the other Party’s (“Representatives”); (ii) instructions provided by the other Party’s Representatives; (iii) a wilful, deliberate or malicious conduct by a third party not affiliated or controlled by either Party.
- Term and Termination. The term of the Agreement will be as set forth and agreed by the Parties in the Order Form or 12 months, whichever is later (the “Initial Term”). Thereafter, the Service Term will be extended by additional one (1) year periods each, unless either Party notifies the other Party at least thirty (30) days prior to the expiration of the then-current term that it does not wish to renew this Agreement. Either Party may terminate this Agreement immediately if: (i) the other Party is in material breach of any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) calendar days of written notice thereof being provided by the Party seeking to terminate, or (ii) the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other Party (and not dismissed within sixty (60) days). In the event the Agreement is terminated or expired, all Order Forms are simultaneously terminated. Upon expiration or termination, Customer will immediately cease use of the Platform and return all Confidential Information to Kenshoo. Sections 5 (in relation to outstanding payments), 6, 7, 11- 19 and 22 will survive the termination of the Agreement.
- Dispute Resolution. Prior to initiating any legal action, the Parties will attempt to resolve in good-faith any dispute related to this Agreement, first by direct communications between the persons responsible for administering this Agreement on behalf of each Party and next by negotiation between executives with authority to settle the dispute. Either Party may give the other Party a written notice of any dispute not resolved in the normal course of business. Within five (5) business days after delivery of the notice, the receiving Party will submit to the other Party a written response. The notice and the response will include a statement of each Party’s position and a summary of arguments supporting that position and the name and title of the executive who will represent that Party. Within five (5) business days after delivery of the disputing Party’s notice, the executives of both Parties will meet at a mutually acceptable time and place, including by phone or video conference, and thereafter as often as they reasonably deem necessary, to resolve the dispute. All reasonable requests for information made by one Party to the other will be honored. All negotiations pursuant to this clause are confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
- Governing Law and Jurisdiction. This Agreement, and any claim, cause of action or dispute arising out of or related thereto, will be governed solely by the laws of the jurisdiction, and will be brought exclusively in the courts, as provided under the following table:
|Kenshoo’s Company||Customer’s Domicile||Governing Law||Venue|
|Kenshoo Inc.||North America, Canada, Colombia, Indonesia, Japan, Malaysia, Mexico, Taiwan, USA, Vietnam, Philippines||New York||New York, NY, USA|
|Kenshoo (UK) Ltd.||Argentina, Austria, Belgium, Chile, Czech, Republic, Denmark, Finland, France, India, Italy, Netherlands, Poland, Russia, South Africa, Spain, Sweden, Turkey, Ukraine, UK, UAE, Germany, Ireland, Norway||England||London, England|
|Kenshoo Ltd.||Australia, China, Hong Kong, Israel, Korea, New Zealand, Singapore, Thailand||Israel||Tel Aviv, Israel|
|Kenshoo Brasil Plataforma de Marketing Ltda||Brazil||Brazil||Sao-Paulo, Brazil|
|K- Apps Ltd.||Anywhere in the world, when K- Apps is the only Service purchased||Israel||Tel Aviv, Israel|
Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
- Marketing. Kenshoo may disclose the fact that Customer is a customer of Kenshoo and may use Customer’s and Customer’s clients’ logo and trademarks on Kenshoo’s website and in its sales and marketing materials. In addition, subject to Customer’s prior written approval, Kenshoo may issue a press release in regards to the Agreement and at Kenshoo’s request, Customer will cooperate with Kenshoo in case studies, testimonials, media releases and white papers and will serve as a reference for Kenshoo.
- Assignment of Rights. Customer may not transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of Kenshoo. Kenshoo may assign this agreement in whole or in part at its discretion.
- Miscellaneous. There are no third-party beneficiaries under this Agreement. This Agreement constitutes the entire and complete agreement between Customer and Kenshoo and supersedes any previous agreements or representations, either oral or written with respect to the subject matter of this Agreement. No terms issued by Customer or appearing on any other document provided by Customer, including without limitation any invoice, order, purchase order or acknowledgment form will have any force or effect or otherwise be binding on the Parties. If any provision of this Agreement is held invalid or unenforceable, that provision must be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the Parties and the remaining provisions will remain in full force and effect. This Agreement may be amended only by a written instrument executed by duly authorized representatives of the Parties. All notices under this Agreement will be in English and in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and exclusive of, any other remedies of a Party at law or in equity. This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.
- Whenever the following capitalized terms are used in this Agreement or in any addendum, supplement or applicable Order Form, they shall have the meaning specified herein:
Allotment – Amount of activity included in the Subscription Fee (if any). Any Monthly Media Spend under the Allotment is not charged an additional percentage rate;
Audience Data Budget – The total amounts due by Customer to Social Publishers and/or Pinterest for all adsets using Kenshoo Audience Data;
Professional Services – If specific integration, Custom Tracking and/or Integration and, which is not included in the applicable Kenshoo Package, or other professional services, are requested by Customer such as retrieval of data or analytics , the scope of such services and associated costs will be agreed upon in writing by the parties in writing.
eComm Monthly Media Spend – The total amounts due by Customer for all activity to all eComm Publishers for all activity managed through Kenshoo eComm during the month for which payment is due;
eComm Publishers – Certain eComm publishers including Amazon and Walmart as may be amended by Kenshoo from time to time;
Kenshoo eComm – An e-Commerce advertising management Service that enables the Customer to manage and optimize e-Commerce advertising campaigns on various eComm Publishers;
Kenshoo Local Search/Social – A search advertising management Service that enables the Customer to manage and optimize local search advertising (SEM) campaigns on various Search Publishers;
Kenshoo Local Search/Social Monthly Media Spend – The total amounts due by Customer to all Search Publishers for all activity Managed through Kenshoo Local Search/Social during the month for which payment is due;
K- Apps Monthly Media Spend – The total amounts due by Customer to all Publishers for all activity Managed through the Kenshoo Apps Platform during the month for which payment is due.
Kenshoo Search – A search advertising management Service that enables the Customer to manage and optimize search advertising (SEM) campaigns on various Search Publishers;
Kenshoo Social – A social media advertising management Service that enables the Customer to manage and optimize advertising campaigns on various Social Publishers;
Minimum Fee – Monthly fee payable regardless of the actual use of the applicable Kenshoo Package, unless the fee for actual use is higher;
Package – Kenshoo applicable Services as described in http://kenshoo.com/packages/;
Pinterest Monthly Media Spend – The total amounts due by Customer to Pinterest for all activity Managed through Pinterest during the month for which payment is due;
Premium/Combined Spend – The total of the Search Monthly Media Spend and the Social Monthly Media Spend in any applicable month under the Premium Package;
Publishers – Search Publishers, Social Publishers, and eComm Publishers as such may be amended from time to time;
Setup – Initial setup and integration of the Customer’s accounts and conversion data to Kenshoo’s Platform, including pixel conversion, file conversion and a BuildURL configuration (i.e., an automated ad URL builder), as detailed on the Kenshoo applicable Package.;
Search Publishers – Certain search publishers including Google, Yahoo, Bing, Yahoo Japan, Baidu and Yandex as may be amended by Kenshoo from time to time;
Search Monthly Media Spend – The total amounts due by Customer to all Search Publishers for all activity managed through Kenshoo Search during the month for which payment is due;
Social Monthly Media Spend – The total amounts due by Customer to all Social Publishers for all activity managed through Kenshoo Social during the month for which payment is due;
Social Publishers – Certain social publishers including Facebook, Google, Apple and Snap, as may be amended by Kenshoo from time to time;
Subscription/Subscription Fee – Monthly subscription fee payable regardless of the actual use of the applicable Service;
Transitional Services- Transitional Services include account management for the applicable Publisher, weekly reporting, and account handoff (if applicable). Transitional Services do not include any creative work on any campaign, other than minor cropping, resizing, or color adjustments, provided however, that the original files are provided to Kenshoo by Customer;
Transitional Services Budget – The total amounts due by Customer to Publishers for all campaigns viewed and managed by Kenshoo during the applicable period for which payment is due to Kenshoo.