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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
The Term of this Agreement is as set in the applicable Order Form.
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.
The governing law and the jurisdiction will be as set in the applicable Order Form.
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.
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.