These General Terms and Conditions (“Agreement”) govern the use of the Platform and Services and are incorporated by reference to an Order Form signed by and between the Customer and the applicable Kenshoo entity as defined and detailed therein and will be dated as of Kenshoo’s signature date on the Order Form (the “Effective Date“). Please read carefully the terms and conditions set out below before installing, uploading or otherwise using the Platform and Services. By installing, uploading or otherwise using the Platform and Services Customer agrees to these terms and conditions.

  1. Scope of Services

    In consideration of Customer’s payment to Kenshoo of the fees set forth in the Order Form, and subject to the terms and conditions hereof, Kenshoo shall provide the Services to Customer during the term of this Agreement for the purpose of Customer’s use of the solutions enabled via the Kenshoo Platform and as detailed in the applicable Order Form only for managing Customer’s search (SEM), social, eComm, and/or Pinterest campaigns. Customer shall be solely and entirely responsible and liable for activity that occurs by using its Username/s and shall be responsible for maintaining the confidentiality of its password/s.

  2. Support

    As part of the Services, during the term of this Agreement, Kenshoo will provide Customer technical support for the Kenshoo Solution in accordance with Kenshoo’ applicable standards support terms).

  3. Intellectual Property Rights & Ownership

    All intellectual property rights in the Kenshoo Platform, the Services and any part thereof, including any and all software, databases and other aspects and technologies related to the Kenshoo Platform and the Services and any and all derivatives, changes and improvements thereof shall remain exclusively with Kenshoo and/or its licensors. Kenshoo hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-transferable (except as expressly provided in this Agreement), and limited right for Customer to access and use the Kenshoo Platform for the sole purpose of utilizing the Services.

  4. The Customer may not: (a) install, access, run or otherwise use the Platform and Services other than in accordance with the terms of the Agreement; (b) assign, sub-license, transfer, pledge, lease, rent, lend, distribute or share the Platform and Services or any rights thereto pursuant to these Agreement, directly or indirectly, for a consideration or free of charge; (c) disassemble, decompile, reverse-engineer, create derivative works, copy or duplicate the Platform and Services or any part thereof, and likewise copy screens, reports or processes and/or modify the Platform and Services in any way whatsoever; (d) remove, delete, alter or destroy any proprietary notice or label on or in the Platform and Services; (e) timeshare or serve as a service bureau or allow others to use the Platform and Services via tool that were not provided by Kenshoo and/or anyone on its behalf; (g) manipulate the source code of the Platform and Services in any way including, inter alia, fundamental ideas, algorithms, file formats of the √ and/or the their database; (h) permit or encourage any third party to do all the aforementioned. Any breach of the provisions of Clause (3) shall constitute a fundamental breach.

  5. Data
    • Customer owns and retains all right, title and interest in and to all data derived from Customer’s use of the Services (“Service Data“); provided, however, that Kenshoo retains the right to use any Service Data solely as part of its business operations (i) to disclose aggregate and anonymous statistics about the Services; (ii) to the extent necessary to (a) perform its obligations under this Agreement; (b) operate, manage, test, maintain and enhance the Kenshoo Platform; and/or (c) protect the Kenshoo Platform from a threat to the Platform; and/or (iii) if required by court order or law.
    • Kenshoo shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Service Data and Kenshoo shall have the right to delete Service Data older than three years and all Service Data following the termination of this Agreement.
    • Customer acknowledges that Kenshoo will process data pursuant to Kenshoo’s privacy policy, which is published at http://www.kenshoo.com/privacy-policy/ and amended from time to time (the “Kenshoo Privacy Policy”). Customer shall post a privacy policy that (a) complies with all applicable laws, rules, and regulations and will provide end-users with a conspicuous link to a functional opt-out page so that end-users may opt-out of tracking activities.
  6. Consideration

     In consideration of the Services provided to Customer, Customer shall pay Kenshoo a monthly fee as set forth in the applicable Order Form (“Service Fees“). Payments shall be made according to the payment terms set forth in the applicable Order Form. If no payment terms are specified in the applicable Order Form, payments shall be made within thirty (30) days following the end of the relevant month. Any dispute over an invoice must be raised in a writing provided by Customer to Kenshoo no later than 180 days from the date of the relevant invoice setting out the basis for the dispute. Any payment not paid by Customer to Kenshoo when due shall bear interest at the rate of 1.5% per month (but no more than the maximum rate allowed by applicable law), and shall constitute sufficient cause for Kenshoo to immediately suspend performance and terminate this All costs incurred by Kenshoo for the collection of such payments, including reasonable attorney’s fees, shall be borne in full by Customer. Publishers are currently not charging Kenshoo API fees and Kenshoo has received no indication that this will change. In the event that Publishers start charging API fees, Kenshoo will notify Customer and will be entitled to add the API fees to the Service Fees, on a pass through basis.  In the event that the added API fees exceed five percent (5%) of the average monthly invoice issued to Customer prior to the addition of the API fees, then Customer will be entitled to terminate this Agreement with thirty days prior written notice at any time within sixty days of Customer’s receipt of notice about the addition of the fees.

  7. Taxes

    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 shall bear the amount withheld and pay an amount to Kenshoo such that the net amount payable to Kenshoo after withholding of taxes shall 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 shall be invoiced to and paid by Customer unless Customer provides Kenshoo with a valid tax exemption certificate authorized by the appropriate taxing authority.

  8. Confidentiality

    During the term hereof, each party may have access to certain non-public proprietary information or data of the other party, whether furnished before or after the Effective Date, and regardless of the way it is furnished, which under the circumstances, a reasonable person should know is confidential (together, the “Confidential Information“). Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of or reference to the Confidential Information. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties 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 obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek appropriate relief. 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’s data processed via such third-party software shall be considered Confidential Information of Customer.

  9. Customer Warranties
    • Customer acknowledges that each Publisher as applicable to this Agreement maintains various terms and conditions for usage thereof, and Customer hereby warrants that its usage of the Kenshoo Platform any data (including Audience Data) specifications, images, and/or content used therein (the “Materials”) shall at all times be in full compliance with any terms and conditions applicable to all Publishers, as applicable, as well as with any laws, international conventions, codes or regulations in any applicable jurisdiction. It is hereby agreed that the breach of this Section 8.1 by Customer shall be considered a material breach of the Agreement and Kenshoo will have the right to immediately terminate the Agreement.
    • Customer acknowledges that the Services are dependent upon access to telecommunications and internet services. Customer warrants that it will be solely responsible for acquiring and maintaining all telecommunication and internet services and other hardware and software required to access and use the Services.
    • Customer represents and warrants that it will not use the Services in violation of applicable laws, or to send or store via the Services (i) materials or information which may violate intellectual property rights or other proprietary rights of third parties, or which have been unlawfully obtained or (ii) materials containing software viruses, worms, Trojan Horses or other harmful computer code, files, scripts, agents or programs.
    • Customer represents and warrants that it will not use the Services or the Kenshoo Platform 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, and that Customer’s trademarks do not infringe any intellectual property right of any third party. With respect to the use of Audience Data (if applicable), Customer represents and warrants all the following: (i) that it shall comply with the applicable Data Marketing Provider’s technical specifications concerning the use of Audience Data, and if applicable, Data Marketing Provider’s Advertising Requirements; (ii) it acknowledges that neither Data Marketing Provider/s or Kenshoo is responsible for determining the best and proper use of the Audience Data; (iii) it fully owns or has the authority to use or provide the data it provides and that is required for the purpose of generating Audience Data and that in its obtaining or collecting such data from third parties all such data will contain data only on U.S. adult resident and that such data does not and it will not take any action that would violate applicable local, state or federal law and any applicable regulations or self-regulatory guidelines; (iv) it shall use Audience Data only through the Kenshoo Platform and shall not use them for any purpose other than as explicitly agreed herein; (v) it shall not: (1) decompile, disassemble, create derivative works, or reverse engineer the Audience Data; or (2) sublicense, resell, reuse, or otherwise grant any rights in the Audience Data to any third party, including any service bureau use; and (vi)  it will refrain from using Audience Data for: (1) any impermissible purpose or adverse action as defined by the Fair Credit Reporting Act (as may be amended from time to time); (2) the renegotiating or restructuring of debt; or (3) 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 under applicable law. Further, Customer shall not use Audience Data for the purposes of employment, credit eligibility, health care or insurance eligibility underwriting and pricing.
    • Kenshoo may discontinue Services or disable tracking capabilities due to failure of Customer to comply with any of the above warranties.
  10. Disclaimer of Warranties

    Customer acknowledges that the Services are based on information, data, requirements, specifications, and Materials contained on Customer’s and/or Agency Customers’ website and/or provided by Customer. Kenshoo does not provide Customer with any warranty whatsoever, neither on behalf of itself nor on behalf of any Publisher, with respect to any Publisher services or part thereof generated by using the Platform. It is further understood and agreed that Kenshoo does not intend and will not be required to edit or review for accuracy, lawfulness, or appropriateness of any information, data, and/or Materials of Customer. It is hereby made explicitly clear that Kenshoo shall not be held responsible for any acts and/or omissions on the part of any Publisher, and/or factors outside of Kenshoo’s control, including internet outages, cyber attacks, or force majeure events. EXCEPT FOR THE WARRANTIES PROVIDED HEREIN, IF ANY, KENSHOO PROVIDES THE SERVICES ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED. KENSHOO DOES NOT WARRANT THAT THE PLATFORM OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION.

  11. Limitation of Liability

    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. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, 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, OR OTHERWISE. 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.

  12. Term

    The Term of this Agreement is as set in the applicable Order Form.

  13. Termination

    Either party may terminate this Agreement at any time by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. Upon termination of this Agreement, Customer will immediately cease use of the Platform and return all Confidential Information to Kenshoo. Sections 3, 7, 11, 12, 14, 15, 16, 17 and 18 shall survive termination.

  14. Governing law; Jurisdiction

    The governing law and the jurisdiction will be as set in the applicable Order Form.

  15. Entire Agreement

    This Agreement and any exhibits hereto, if any, constitutes the entire agreement between Kenshoo and Customer and supersedes any previous agreements or representations, either oral or written with respect to the subject matter of this Agreement. All amendments may be made only in writing.

DEFINITIONS

Audience Data – A solution that enables Customer to use third party Data Marketing Providers audiences and/or generate through Data Marketing Providers lookalike audiences using Customer’s data

Audience Data Budget The total amounts due by Customer to Social Publishers and/or Pinterest for all Adsets using Kenshoo Audience Data.

Agency – An entity providing marketing consulting and/or media management services to advertisers and other customers.

Agency Customer – The customers of an Agency.

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.

Configuration and 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).

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 as may be amended by Kenshoo from time to time.

Search Publishers – Certain search publishers including Google, Yahoo, Bing, Yahoo Japan, Baidu and Yandex as may be amended by Kenshoo from time to time.

Social Publishers – Certain social publishers including Facebook as may be amended by Kenshoo from time to time.

Kenshoo eComm™ – An e-Commerce advertising management solution that enables the Customer to manage and optimize e-Commerce advertising campaigns on various eComm Publishers.

Kenshoo Mass Campaign Management™ – A search advertising management solution that enables the Customer to manage and optimize local search advertising (SEM) campaigns on various Search Publishers.

Kenshoo Platform – A platform which constitutes and enables the use of each and the combination, if applicable of Kenshoo Search, Kenshoo Social, Kenshoo Mass Campaign Management Solution, Kenshoo eComm, and/or any other Kenshoo solution.

Kenshoo Search™ – A search advertising management solution that enables the Customer to manage and optimize search advertising (SEM) campaigns on various Search Publishers.

Kenshoo Social™ – A social media advertising management solution that enables the Customer to manage and optimize advertising campaigns on various Social Publishers.

Kenshoo Solution – (i) the Kenshoo Search solution; (ii) Kenshoo Mass Campaign Management solution; (iii) Kenshoo Social solution; (iv) Kenshoo eComm Solution, and any other Kenshoo solution incorporated into the Kenshoo Platform.

Managed – Any activity existing in or managed through the applicable Kenshoo Package in the relevant month.

Mass Campaign Monthly Media Spend – The total amounts due by Customer to all Search Publishers for all activity Managed through Mass Campaign Management during the month for which payment is due.

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 Package 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 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, eComm Publishers, and Pinterest.

Services – Campaign management and optimization using the applicable Kenshoo Package.

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.

Signature Spend – The total of the Search Monthly Media Spend and the Social Monthly Media Spend in any applicable month under the Signature Package.

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.

Subscription/Subscription Fee – Monthly subscription fee payable regardless of the actual use of the applicable Kenshoo Package.

Training – Initial Training takes place after configuration and setup are complete. Initial Training is done remotely via web/phone, unless otherwise agreed.  Customer will reimburse Kenshoo for reasonable travel and related expenses Kenshoo as mutually agreed.  Additional self-directed informal training is available on Kenshoo’s customer portal, at no cost.

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.

User – Credentials to access the Kenshoo Platform. Each User’s username shall be a valid email address, so that password resets, alerts and notifications may be sent by Kenshoo to such Users. The initial usernames provided to Customer shall be provided as part of onboarding to the Kenshoo Platform.