This Data Services Agreement, including all Schedules attached hereto (as applicable) (collectively, these “Terms”), are effective as of the date set forth in an Order Form which incorporates these Terms by reference (the “Effective Date”), is entered into by and between the Semasio legal entity executing an Order Form (“Semasio”) and the other legal entity executing an Order Form (“Company”). Semasio and Company may be referred to herein as the “Parties” and each as a “Party.” These Terms and any applicable Order Forms shall collectively be referred to as the “Agreement”.
BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, COMPANY AGREES TO THE TERMS OF THE AGREEMENT. IF THE INDIVIDUAL ACCEPTING THE AGREEMENT IS ACCEPTING ON BEHALF OF COMPANY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND THE TERM “COMPANY” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS, COMPANY MAY NOT USE THE SERVICES.
Semasio may update these Terms from time to time, with such updated version posted to https://semasio.com/legal/terms/semasio-dataservices and/or the associated websites for the Data Protection Addendum as linked below, or a successor website(s) designated by Semasio; any such updated version will apply automatically as of the date such updates take effect. Semasio will notify Company of material updates to these Terms at least thirty (30) days prior to the effective date of such updates through communications via email in accordance with Section 10.3 (Notice), provided that a shorter notice period may apply in the event such material updates result from changes in applicable laws or regulations. Following such notice, Company’s continued use of the Services after the updated version of the Terms go into effect will constitute Company’s acceptance of such updated version.
This Agreement includes the following exhibits and schedules which are an integral part of this Agreement:
“Affiliate” means an entity controlling, controlled by or under common control with a Party. As used in this definition, the terms “control,” “controlling” and “controlled by” shall mean the possession, directly or indirectly, of the power either to (a) vote 50% or more of the securities or interests having ordinary voting power for the election of directors (or other comparable controlling body) of such person or (b) direct or cause the direction of the actions, management or policies of such person, whether through the ownership of voting securities or interests, by contract or otherwise.
“Applicable Laws” means applicable laws, or governmental rules, regulations, or orders.
“Audience Segments” means groupings of User IDs or other Personal Data generated on the Platform to be delivered to Third-Party Platforms for activation.
“Company Client” means a client of Company, including advertisers.
“Company Data” means any data made available or provided by Company and/or a Company Client to the Platform, but specifically excluding any Semasio Data.
"Consumer” means a “consumer” “data subject” or equivalents as defined under Applicable Laws.
“Contextual Segments” means lists of uniform resource locators (URLs) connected to keywords generated on the Platform to be delivered to Designated Third-Party Platforms for activation.
“CAX Contextual Segments” means Contextual Segments modeled using Personal Data.
“Data Protection Laws” means all applicable international, federal, state, and local data protection and privacy laws, rules, directives, regulations, orders, decrees, judgments, and governmental requirements currently in effect, or as they become effective, to the extent they apply to Personal Data processed by a Party under the Agreement in the applicable Territory.
“Data Protection Addendum” or “DPA” means the Data Protection Addendum located at www.hellofyllo.com/legal/terms/dpa-semasio-platform (or a successor website designated by Semasio), including all schedules and annexes incorporated therein by reference.
“Designated Third Party Platforms” means any third party platform, including demand side platforms (DSP) or sell side platforms (SSP) identified in the applicable Order Form(s), or as subsequently authorized by Semasio in writing from time to time (email sufficing), to which Company and/or Semasio may make available the Outputs.
“Model” means model(s) generated by the Platform, including scoring algorithms and software code.
"Order Form” means an order form signed by both Parties hereto which incorporates this Agreement by reference and sets forth the Services and/or Outputs to be provided by Semasio to Company, the fees payable with respect to same, and any additional terms and conditions specific to such Services and/or Outputs.
“Outputs” means Audience Segments, Contextual Segments, CAX Contextual Segments, or other outputs of the Services identified in an Order Form.
“Permitted Use” means, as applicable, a Party’s permitted use of the Services, Models, and/or Outputs, including the permitted processing of any Personal Data in connection therewith, each as further described in the applicable Schedules and Order Form(s).
“Personal Data” means any data or information related to a Consumer processed in connection with this Agreement defined as “personal data”, “personal information”, or equivalents under Applicable Laws.
“Platform” means Semasio’s proprietary software-as-a-service platform used by Semasio for the performance of the Services, including all Models and other software and technology related thereto.
“Platform Schedules” means service and product specific schedules for the Services attached to this Agreement.
“Semasio Data” means data created, developed, or acquired by Semasio or its Affiliates, including third party data and derivatives thereof, licensed or made available to Company under this Agreement.
“Service(s)” means the provision of Services by Semasio to Company for the Permitted Uses set forth in this Agreement, including as further described in any Schedules or Order Forms.
“Territory” or “Territories” means the applicable territories set forth in an Order Form.
Company shall deliver Company Data to the Platform as required to enable the Services in a form and format required by Semasio. Semasio may develop one or more Models to develop and deliver the Outputs to the Designated Third Party Platforms as part of the Services described in the applicable Order Form. All Services are provided on a managed service basis. Company will not receive access to the Platform hereunder.
Company hereby grants to Semasio a limited, revocable, worldwide, non-exclusive license and right to use the Company Data during the Term solely as necessary to provide the Services and for the Permitted Uses. As necessary to perform a Schedule, the foregoing license shall extend to Semasio’s Affiliates.
Subject to Company’s compliance with these Terms, Semasio hereby grants Company a limited, revocable, non-transferable, non-sublicensable, non-assignable, non-exclusive license and right, during the term of the applicable Order Form and solely in the Territories and through the Designated Third Party Platforms specified in the Order Form, to access and use the Outputs solely for the Permitted Uses set forth in these Terms and an applicable Order Form. Nothing in these Terms shall be deemed to grant Company any license to use the Platform, Services, Outputs, or any Semasio Data other than as expressly stated herein.
As between Semasio and Company, Semasio owns all right, title, and interest, including without limitation all intellectual property rights, in and to the Platform, the Services, and/or the Semasio Data, as well as any changes to, modifications to, or derivative works of the Platform, Services, and/or the Semasio Data. As between Semasio and Company, Company owns all right, title, and interest, including without limitation all intellectual property rights, in and to the Company Data, subject to Semasio’s usage rights as set forth in these Terms.
To the extent the Services involve the processing or transfer of Personal Data in a Territory subject to Data Protection Laws, the Parties agree that the Data Protection Addendum shall apply and each Party shall comply with its respective obligations thereunder and applicable Data Protection Laws.
Company agrees not to provide any Company Data to the Platform under these Terms originating from and protected by laws in a jurisdiction other than the Territories identified in the applicable Order Form(s) without Semasio’s prior written consent.
The fees payable in connection with the Services are set forth in the applicable Order Forms. Except as otherwise set forth in the applicable Order Form, all amounts will be due and payable in full in U.S. Dollars within thirty (30) days of date of invoice. Semasio hereto reserves the right to terminate and/or suspend performance of its obligations hereunder upon ten (10) days prior written notice to Company hereto in the event of Company’s failure to timely pay an invoice.
Company is responsible for paying all federal, state, local, foreign, or other taxes (including VAT), duties, tariffs, or other charges, however designated, arising from or based upon these Terms, except for taxes based on Semasio’s income. If Company is required by applicable law to make any tax deduction or withholding then the gross amount payable will be increased so that the net amount received by Semasio will not be less than what would have been received had no such deduction of withholding been required. All invoices must be paid by Company in full, without set-off, counterclaim, deduction or withholding.
Semasio represents, warrants, and covenants that the Services will be performed by personnel possessing the required skills and experience and in a professional and workmanlike manner, and the Services will be provided in material accordance with the agreed upon requirements and specifications in the applicable Order Form.
Company represents, warrants, and covenants that it shall (and shall require its Company Clients or third party data providers that are the source of such Company Data to) implement and maintain privacy notices and choice mechanisms in compliance with Applicable Laws on its corporate website and on all properties it utilizes to collect Personal Data, including at the point of collection as required under Applicable Laws. Company represents, warrants and covenants to Semasio that it has all necessary legal rights and consents to provide Company Data for use with the Platform and Services in accordance with these Terms and each Order Form, subject at all times to the specific requirements and limitations set forth in each Schedule attached hereto and in compliance with all Applicable Laws and the DPA. In furtherance and not limitation of the foregoing, Company shall be solely responsible for all actions of and agreements with the Company Clients or other third parties engaged by Company. Company acknowledges and agrees that (a) no such Company Clients shall be deemed third party beneficiaries of these Terms, (b) no direct contractual relationship is established between Semasio and such Company Clients by virtue of these Terms, and (c) Company remains solely responsible for compliance with all terms of these Terms on its own behalf and on behalf of its Company Clients. To the extent the Company Data or Content originates with the Company Clients or a third party, Company represents and warrants that it shall contractually bind such Company Clients or third parties to obligations consistent in all material respects with the obligations in these Terms.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES, OUTPUTS AND SEMASIO DATA ARE PROVIDED “AS IS”, SEMASIO DOES NOT MAKE ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SEMASIO IS NOT RESPONSIBILE FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY UNDER THESE TERMS, WHETHER OR NOT RELATED TO THE SEMASIO DATA.
Each party will indemnify, defend, and hold harmless the other party and their employees, representatives, agents, directors, officers, managers, and members from any damages, liabilities, costs, and expenses incurred in connection with any third-party claim, demand or action, including from a regulator or other governmental authority, arising out of or resulting from the party’s breach of its representations and warranties in Section 5 (a “Claim”). The Party seeking indemnification will promptly notify the other Party in writing of a Claim and provide reasonable cooperation (at the indemnifying party’s expense) and grant the indemnifying Party sole and full authority to defend the Claim, provided, however, the indemnified Party may participate in the defense of such claim at its expense. The indemnifying Party will not settle any claim on the indemnified Party’s behalf without first obtaining the indemnified Party’s written permission (which will not be unreasonably withheld or delayed). The indemnifying Party may not enter into a settlement of any claim without the other Party’s prior written consent to the extent such settlement would: (a) require an admission of fault for any violation of law or other wrongdoing by the other Party hereto; (b) require the other Party hereto to make any payments to the plaintiff or other person or have any remaining liability (whether fixed or contingent) to any person; or (c) restrict the other Party hereto from engaging in any otherwise lawful business activity. For clarity, Semasio does not agree to indemnify Company to the extent that (i) Company or Company Client’s use of the Outputs, including any Semasio Data, is outside the scope of the rights granted to Company or Company Client, or otherwise in violation of any term of the relevant agreement between Company or Company Client and any third-party platform or provider; (ii) Company or Company Client modified or used the Output in a way not authorized by the Designated Third Party Platforms; or (iii) Company or Company Client, as applicable, has been indemnified or otherwise received recovery from the relevant third-party platform or from any other party.
NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE FOREGOING LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IN NO EVENT WILL SEMASIO BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, SALES, GOODWILL OR REPUTATION. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SEMASIO ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE FEES ACTUALLY PAID BY COMPANY TO SEMASIO UNDER THE APPLICABLE ORDER FORM.
By virtue of these Terms, a Party (“Disclosing party”) may disclose to the other party (“Receiving party”) information which is sensitive, confidential, proprietary, and/or a trade secret of the Disclosing party (“Confidential Information”). The receiving party will not disclose Confidential Information except to its employees, contractors, and agents as required to exercise its rights or perform its obligations hereunder, and will exercise the same degree of care in safeguarding and protecting the confidentiality of the Confidential Information that Receiving party exercises with respect to its own confidential information, but in no event less than a reasonable degree of care.
Confidential Information shall not include information that: (a) is or becomes part of the public domain through a source other than Receiving party; (b) was rightfully known to the Receiving party as of the time of disclosure; (c) is independently developed by Receiving party; (d) is subsequently learned from a third party not under a confidentiality obligation to the Disclosing party; (e) is authorized for disclosure by the Disclosing party; (f) is and only to the extent required to be, disclosed pursuant to a duly authorized subpoena, court order, or government authority, whereupon Receiving party subject to the same will provide prompt written notice to the Disclosing party, prior to disclosure, so that Disclosing party may seek a protective order or other appropriate remedy.
These Terms shall commence on the Effective Date and remain in effect until ninety (90) days after all Order Forms entered into hereunder are expired or earlier terminated by their terms (the “Term”).
Semasio may terminate or suspend these Terms, including any or all Order Forms, immediately upon written notice to Company and without further obligations if Semasio, in its sole reasonable discretion, determines that its performance under the Agreement: (a) could cause damage to Semasio’s or its Affiliates’ reputation, (b) may be in violation of applicable law, rule, regulation, or order, or (c) could be a material risk to its business or operations. Any suspension or termination under this Section by Semasio shall be deemed to be without fault and without prejudice to all other rights and remedies available to Semasio under these Terms or in equity.
Upon termination, Semasio may retain Confidential Information or Company Data in accordance with its standard retention policies or as required by law, judicial, regulatory, or other governmental authority, including a subpoena, preservation demand, or any other legal preservation obligation.
Semasio’s performance under these Terms and any Order Form ceases upon delivery of the Outputs to the Designated Third Party Platforms. For clarity, these Terms will continue to apply to Company’s use of the Outputs following such delivery.
Force Majeure.
Neither Party will be deemed in default of this Agreement to the extent that performance of its obligations (other than payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such Party.
Governing Law and Jurisdiction.
This Agreement is to be construed in accordance with and governed by the laws of the State of New York, without giving effect to any conflicts of law rules. Any action or proceeding arising out of or related to this Agreement may be brought only in the federal or state courts of New York County, New York. Each of the Parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY ACTION BETWEEN THE PARTIES.
Notice.
Notices may be sent to the addresses set forth in an Order Form by overnight messenger (effective on delivery) or by email to (i) to Semasio at legal@semasio.com and (ii) to Company at the email address on file at Semasio without notice of an undeliverable content. If the final day for giving notice is a Saturday, Sunday or nationally recognized holiday then the time for giving such notice will be extended to the next business day. Notices to update contact information for notice shall comply with this Section.
Assignment.
This Agreement may not be assigned, in whole or in part, by Company without the prior written consent of Semasio. Semasio shall have the right to assign or otherwise transfer this Agreement or any of its rights or obligations hereunder. Any purported assignment, sale, transfer, delegation or other disposition by Company, except as permitted herein, shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
Entire Agreement.
The Agreement is the entire agreement between the Parties, and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding the subject matter of these Terms.
Independent Contractors.
The relationship of Semasio and Company established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the Parties.
Severability.
If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions will remain effective and such term will be replaced with a term consistent with the purpose and intent of these Terms.
Survival.
Provisions that survive termination or expiration of these Terms are those relating to confidentiality, limitations of liability, indemnities and others which by their nature are intended to survive.
This Schedule A forms a part of the Terms and shall be binding on the Parties as supplemental terms in connection with the performance of any Order Form for Contextual Segments and/or CAX Contextual Segments entered into between the Parties.
As used herein, the following terms shall have the following meanings. Capitalized terms not defined herein shall have the meanings set forth in the Terms.
“Children’s Data” “Children’s Data” means any data related to individuals under eighteen (18) years of age subject to regulation under Applicable Laws, including but not limited to the Children’s Online Privacy Protection Act of 1998 (“COPPA”), the UK Age-Appropriate Design Code, the California Age-Appropriate Design Code Act, or similar legislation.
"CMP” means a consent management platform integrated with the GPP.
“Global Privacy Platform” or “GPP” means the IAB’s industry framework for the sharing of consent, opt-out or other Consumer flags or signals, including as made available by the IAB in Europe (“TCF”), the United States, Canada, and any other applicable territory, with technical specifications currently available at https://github.com/InteractiveAdvertisingBureau/Global-Privacy-Platform.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended, and implementing regulations and guidance related thereto, including without limitation the December 1, 2022 advisory issued by the Office of Civil Rights on the Use of Online Tracking Technologies by HIPAA Covered Entities and Business Associates available at https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/hipaa-online-tracking/index.html.
“Personal Health Information” or “PHI” has the meaning ascribed to under HIPAA.
“Precise Location Data” has the meaning set forth in Applicable Laws and where not defined under Applicable Laws, as defined by the NAI Guidance on Determining Whether Location is Imprecise, as updated from time to time and currently available at: https://thenai.org/wp-content/uploads/2021/07/nai_impreciselocation2.pdf.
“Sensitive Personal Data” means any data or information related to a Consumer defined as “sensitive personal data,” “sensitive personal information,” “special categories of data” or equivalents under Applicable Laws. For purposes of this Schedule, “Sensitive Personal Data” also means Children’s Data, PHI, and Precise Location Data.
“Specific Consent” means the Consumer permissions required under Applicable Laws for processing Sensitive Personal Data for the Permitted Uses and purposes specified in the Agreement, including without limitation a clear, affirmative act signifying Consumer’s freely given, specific, informed, and unambiguous agreement to the processing of Sensitive Personal Data for such Permitted Uses and purposes.
“Tracking Point” means Semasio’s proprietary pixel.
Semasio shall provide Company with the following Services:
The ability to upload the Company Data to the Platform, including via an API (if specified in an Order Form); and
Semasio shall (i) create, manage, and analyze Contextual Segments and/or CAX Contextual Segments utilizing the Company Data and any Semasio Data licensed to Company pursuant to the Order Form, and (ii) distribute such Contextual Segments or CAX Contextual Segments to Company’s Designated Third Party Platforms (each as set forth in the Order Form), for use by Company to purchase and place advertising for itself and/or the Company Clients.
Semasio may use all Company Data to perform its obligations and exercise its rights pursuant to the Terms and each Order Form entered into between the Parties, all of which shall be deemed Permitted Uses. In connection with the foregoing, Semasio’s Affiliates shall have the right to use the Contextual Segments or CAX Contextual Segments for the same purposes as Semasio hereunder.
Company represents and warrants:
Company is solely responsible for its configuration and placement of Tracking Points in compliance with the requirements of this Schedule and the Agreement.
This Schedule B forms a part of the Terms and shall be binding on the Parties as supplemental terms in connection with the performance of any Order Form for Audience Segments entered into between the Parties.
As used herein, the following terms shall have the following meanings. Capitalized terms not defined herein shall have the meanings set forth in the Terms.
“Children’s Data” means any data related to individuals under eighteen (18) years of age subject to regulation under Applicable Laws, including but not limited to the Children’s Online Privacy Protection Act of 1998 (“COPPA”), the UK Age-Appropriate Design Code, the California Age-Appropriate Design Code Act, or similar legislation.
"CMP” means a consent management platform integrated with the GPP.
“Global Privacy Platform” or “GPP” means the IAB’s industry framework for the sharing of consent, opt-out or other Consumer flags or signals, including as made available by the IAB in Europe (“TCF”), the United States, Canada, and any other applicable territory, with technical specifications currently available at https://github.com/InteractiveAdvertisingBureau/Global-Privacy-Platform.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended, and implementing regulations and guidance related thereto, including without limitation the December 1, 2022 advisory issued by the Office of Civil Rights on the Use of Online Tracking Technologies by HIPAA Covered Entities and Business Associates available at https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/hipaa-online-tracking/index.html.
“Personal Health Information” or “PHI” has the meaning ascribed to under HIPAA.
“Precise Location Data” has the meaning set forth in Applicable Laws and where not defined under Applicable Laws, as defined by the NAI Guidance on Determining Whether Location is Imprecise, as updated from time to time and currently available at: https://thenai.org/wp-content/uploads/2021/07/nai_impreciselocation2.pdf.
“Prohibited Data” means Sensitive Personal Data, Sensitive Personal Data Inferences, PHI, Children’s Data, and Precise Location Data.
“Sensitive Personal Data” means any data or information related to a Consumer defined as “sensitive personal data,” “sensitive personal information,” “special categories of data” or equivalents under Applicable Laws. For purposes of this Schedule, “Sensitive Personal Data” also means Children’s Data, PHI, and Precise Location Data.
“Sensitive Personal Data Inferences” means inferences based on Personal Data, alone or in combination with other data, which are used to indicate Sensitive Personal Data.
“Tracking Point” means Semasio’s proprietary pixel.
Semasio shall provide Company with the following Services:
The ability to upload the Company Data to the Platform, including via an API (if specified in an Order Form); and
Semasio shall (i) create, manage, and analyze Audience Segments utilizing the Company Data and any Semasio Data licensed to Company pursuant to the Order Form, and (ii) distribute such Audience Segments to Company’s Designated Third Party Platforms (each as set forth in the Order Form), for use by Company to purchase and place advertising for itself and/or the Company Clients.
Semasio may use all Company Data to perform its obligations and exercise its rights pursuant to the Terms and each Order Form entered into between the Parties, all of which shall be deemed Permitted Uses. In connection with the foregoing, Semasio’s Affiliates shall have the right to use the Audience Segments for the same purposes as Semasio hereunder.
In connection with the Services under this Schedule, Company represents and warrants that it will not transfer or otherwise disclose any Prohibited Data to Semasio.
Company represents and warrants:
Company is solely responsible for its configuration and placement of Tracking Points in compliance with the requirements of this Schedule and the Agreement.