Semasio Platform Terms

In addition to any terms defined throughout this Agreement, when used in this Agreement, the following capitalized terms shall have the meanings indicated below:

1.1

“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.

1.2

“API” means an Application Programming Interface used to transfer Company Data to the Platform.

1.3

“Applicable Laws” means applicable laws, or governmental rules, regulations, or orders.

1.4

“Audience Segments” means groupings of User IDs or other Personal Data generated on the Platform to be delivered to Third-Party Platforms for activation.

1.5

“Company Client” means a client of Company, including advertisers.

1.6

“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.

1.7

“Confidential Information” means any and all information disclosed by one Party to the other Party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, business plans, technical data, case studies (whether historical or new), product ideas, personnel, and contract and financial information. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of this Agreement or any other agreement by the recipient of the information; (b) is or was known by the recipient of the information at or before the time such information was received from the discloser, as evidenced by the recipient’s tangible (including written or electronic) records; (c) is received from a third-party that is not under an obligation of confidentiality to the knowledge of the receiving Party with respect to such information; (d) is independently developed by the recipient of the information without any breach of this Agreement, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records; or (e) is approved for release in advance in writing by the disclosing Party, as applicable.

1.8

"Consumer” means a “consumer,” “data subject,” or equivalents as defined under Applicable Laws.

1.9

“Content” means software (including a Company API), content, or materials provided by Company and/or a Company Client to Semasio in connection with its use of the Platform and/or Semasio’s provision of the Services, including any Intellectual Property Rights with respect to any of the foregoing, but specifically excluding any portion of the Platform and/or Services.

1.10

“Contextual Segments” means lists of uniform resource locators (URLs) connected to keywords generated on the Platform to be delivered to Third-Party Platforms for activation.

1.11

“CAX Contextual Segments” means Contextual Segments modeled using Personal Data.

1.12

“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.

1.13

“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.

1.14

“Designated Users” means the individual Company users designated by Company to access Company’s account in the Platform, each of which will be assigned a unique user login and password.

1.15

“Designated Third Party Platforms” means any third party platform, including demand side platform (DSP) or sell side platform (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.

1.16

“Documentation” means all operating manuals, user manuals, training materials, guides, product specifications, technical manuals, and supporting materials relating to the Platform and/or Services.

1.17

“Insights” means analytics analyses generated by the Platform, which may utilize Personal Data, provided that any Outputs based on Insights or consisting of Insights shall not contain Personal Data.

1.18

“Intellectual Property Rights” means any copyright, trademark, service mark, trade name, patent, patent application, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right arising under the laws of any jurisdiction, whether registered or unregistered.

1.19

“Model” means model(s) generated by the Platform, including scoring algorithms and software code.

1.20

"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.

1.21

“Outputs” means Audience Segments, Contextual Segments, CAX Contextual Segments, Insights, or other outputs of the Services identified in an Order Form.

1.22

“Permitted Use” means, as applicable, a Party’s permitted use of the Platform, Services, Models, and/or Outputs under the Agreement, including use of data processed by a Party in connection with use of the Platform or Services, and the permitted processing of any Personal Data, each as further described in the applicable Schedules and Order Form(s).

1.23

“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.

1.24

“Platform” means Semasio’s proprietary software-as-a-service platform made available to Company, directly or indirectly, for the performance of the Services, including all Models and other software and technology related thereto.

1.25

“Platform Schedules” means service and product specific schedules for the Services attached to this Agreement.

1.26

“Policies” means advertising criteria or specifications, including technical specifications, privacy policies, user experience policies, policies regarding consistency with Semasio’s public image, policies regarding compliance with all Applicable Laws, and/or other policies as may be specified by Semasio from time to time.

1.27

“Region” means the following geographic areas: EMEA (including the UK, Middle East, and Africa), North America, LATAM, and/or APAC (including Australia and New Zealand).

1.28

“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.

1.29

“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 Platform Schedules or Order Forms, and which may be provided on a self-service or managed service basis.

1.30

“Service Level Standard” means that Semasio shall use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, except for (i) planned maintenance work, and (ii) unscheduled maintenance performed outside the above period, provided Semasio has used reasonable effort to provide Company with notice in advance.

1.31

“Territory” or “Territories” means the applicable territories set forth in an Order Form, which may be on a country or Region basis.

2.1

Access to Semasio Platform and Services.

• Subject to Company’s compliance with the terms and conditions of this Agreement, 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 specified in the Order Form, to access and use the Platform, Services, Outputs, and/or Semasio Data solely for the Permitted Uses set forth in this Agreement and an applicable Order Form.  For clarity, a Permitted Use may require Company’s direct use of the Platform or may instead relate to the use of the Platform by Semasio on behalf of Company on a managed-service basis, each as set forth in the applicable Order Form.  Semasio will provide the Platform in conformity with the Service Level Standard.

• Semasio shall provide Company with the Services agreed upon by the Parties pursuant to written Order Forms signed by both Parties hereto, which may be modified upon the mutual written agreement of Company and Semasio.

• Where the Order Form specifies self-service access, Semasio will provide Company with a reasonable number of user logins and passwords for its Designated Users.  Company and its Designated Users shall not share the user logins and passwords with, or otherwise allow access to the Platform or Services by, any other individuals other than Designated Users.  Company is responsible for maintaining the confidentiality of its user logins and passwords, and all activities that occur under its account.  Company shall notify Semasio immediately of any unauthorized use of Company’s user logins and passwords.

• Company shall not provide the Company Clients access to the Platform without Semasio’s prior written consent, which consent may be withheld in Semasio’s sole and exclusive discretion. Company acknowledges that any requested direct access to the Platform by the Company Clients may require a supplemental agreement.

2.2

Company Obligations.

• Company hereby grants to Semasio a limited, revocable, worldwide, non-exclusive license and right to use the Company Data during the Term solely for the Permitted Uses.  As necessary to perform a Platform Schedule, the foregoing license shall extend to Semasio’s Affiliates.

• Company shall provide Semasio with all reasonable cooperation and technical support necessary and/or appropriate to fully implement the Services.  Company understands and agrees that if, in connection with its use of the Platform and Services, Company is obligated to use technology or code provided by Semasio, it will do so without any modifications thereto.  Company shall not act in any way to circumvent or remove any security measures installed by Semasio with respect to the Platform and Services, including without limitation, any security codes or firewalls.  Company shall ensure that any access granted by Company to the Platform or Services complies with all applicable terms of this Agreement. Semasio will provide commercially reasonable levels of security for all Services provided by Semasio hereunder and networks being utilized by Semasio in connection with the provision of the Platform and/or Services hereunder.

• Company shall provide Semasio with access to its API for the delivery of Company Data to the Platform as required to enable the Services.  The Parties shall work together in good faith to ensure the API properly integrates with the Platform and each Party shall undertake such commercially reasonable efforts, including the deployment of resources and technology, as are necessary to ensure the viability of such integration throughout the Term.  Company hereby provides Semasio with a limited, fully paid-up, non-transferrable license to use the API in connection with the performance of this Agreement during the term of each Order Form that requires the use thereof.  Semasio shall use the API in accordance with Company’s documentation and requirements.

• Where Company shares Company Data with Semasio, Company 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 this Agreement and each Order Form, subject at all times to the specific requirements and limitations set forth in each Platform Schedule attached hereto and in compliance with all Applicable Laws.

• Exclusive of any technology comprising a part of the Platform and Services, Company shall be solely responsible, at its sole cost and expense, for (i) providing and maintaining all hardware, software, electrical and other physical requirements necessary for Company’s use of the Platform and Services, including, without limitation, telecommunications and Internet access connections and links, web browsers, bandwidth, or other equipment, software and services required to access and use the Platform and Services, (ii) ensuring that all of the foregoing are compatible with the Platform and Services, and (iii) complying with all system requirements provided by Semasio, including without limitation any recommended Semasio configuration procedures and Documentation.  Company acknowledges and agrees that if it does not follow the procedures set forth in this Section, it may experience service interruption or unforeseen service issues and Semasio shall not be liable for Company’s failure to comply with this Section or any consequences resulting from such failure under any circumstance.

2.3

Restrictions. Except as otherwise provided in this Agreement, Company has no rights or licenses with respect to the Platform, Services, Outputs, or the Semasio Data. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement or otherwise authorized by Semasio in writing, Company agrees that Company will not, nor will Company allow or facilitate the Company Clients or any third party to, directly or indirectly (a) modify, decompile, reverse engineer, translate, or disassemble the Platform, Services, Outputs, or the Semasio Data or otherwise attempt to derive any of Semasio’s Intellectual Property Rights in the foregoing, (b) sell, resell, copy, distribute, rent, lease, lend, sublicense, transfer, assign or make the Platform, Services, Outputs, or the Semasio Data available to any third party or use the Platform or Services on a service bureau basis, (c) use any device, software or routine to interfere with the proper working of the Platform or Services, (d) use any automated means, including without limitation, agents, robots, scripts or spiders, to access its account or to monitor, copy, or gain access to the Platform, Services, Outputs, or the Semasio Data, (e) use the Platform, Services, Outputs, or the Semasio Data in any manner other than as permitted by this Agreement, (f) create derivative works based on the Platform, Services, the Outputs and/or Semasio Data, including to create lookalikes or other data modeling or to build or enhance any identity or device graph, (g) modify, alter, delete, remove, or obscure any copyright, trademark, patent or other proprietary notices or legends that appear on or are affixed to the Platform, Services or Outputs, or (h) copy or use any of the Documentation other than authorized by Semasio. Without limiting the foregoing, Company further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the Platform infrastructure, as reasonably determined by Semasio. Semasio reserves all rights not expressly granted under this Agreement.

2.4

Company Clients.  Company shall be solely responsible for all actions of and agreements with the Company Clients or other third parties engaged by Company. Notwithstanding the foregoing, Company acknowledges and agrees that (a) no such Company Clients shall be deemed third party beneficiaries of this Agreement, (b) no direct contractual relationship is established between Semasio and such Company Clients by virtue of this Agreement, and (c) Company remains solely responsible for compliance with all terms of this Agreement 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 this Agreement.

3.1

Fees.  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 payable in connection with the use of the Platform and/or provision of the Services are due and payable in full within thirty (30) days of date of invoice. Except as otherwise specified by Semasio, all payments shall be in U.S. Dollars.  Semasio reserves the right to terminate and/or suspend performance of its obligations hereunder upon thirty (30) days prior written notice to Company in the event of a failure by Company to timely pay an invoice.  Company shall be liable for all costs of collection, including attorneys’ fees and costs from and after the expiration of such thirty (30) day notice period. Each Party receiving payment hereunder shall be responsible for any bank charges or costs incurred by it in connection the payment of fees, including without limitation, any loss from any exchange rate differences. All CPM Fees (as defined in an applicable Schedule hereto) payable to Semasio shall be calculated based upon the reports generated by the Designated Third Party Platforms, provided that if appropriate reporting is not provided by a Designated Third Party Platform, Company shall provide Semasio with all necessary reports by the end of calendar month in order to calculate such CPM Fees.

3.2

Dispute Resolution.  In the event Company disputes any fees or expenses owed to Semasio pursuant to this Agreement, it must provide written notice of such dispute via email to invoices@semasio.com within thirty (30) days of the date a disputed amount was otherwise due and owing to Semasio.  Upon timely submission of a notice of dispute pursuant to this Section, the Parties will work in good faith to resolve the dispute for a period of thirty (30) days and if, at the end of such thirty (30) day period, no resolution has been reached, the Platform and/or Services may be immediately suspended or terminated by Semasio and the Parties may pursue their respective rights under Applicable Laws.  In the event a notice of dispute is not timely received, Company shall be deemed to have conclusively accepted the accuracy of Semasio’s calculation of fees and expenses under the applicable invoices and waives any further rights to challenge or dispute such compensation calculation.  If the context so requires, the foregoing right may be undertaken by Semasio with respect to Company’s reporting as to fees and expenses.

3.3

Taxes. 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 this Agreement, except for taxes based on Semasio’s income. If Company is required by applicable law to make any tax deduction or withholding from a payment due to Semasio then the gross amount payable will be increased so that after such deduction or withholding, 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, by bank transfer into the bank account nominated by Semasio

3.4

Audit.  Each Party hereto will maintain accurate books and records pertaining to calculations of all applicable payments due to or payable by Semasio pursuant to this Agreement for the longer of (a) the period of time required by Applicable Law, or (b) a period of three (3) years from the termination of this Agreement. Each Party shall have the right, at such Party’s expense, to conduct or have an independent certified public accountant selected by it conduct an inspection and audit of all the relevant accounting and sales books, records, agreements, computer systems and documents of the other Party hereto, during regular business hours at the other Party’s offices and in such a manner as not to interfere unreasonably with the other Party’s normal business activities (the “Audit”).  In the event the Audit discloses that a Party hereto was underpaid by the other Party hereto, the underpaying Party shall immediately correct such underpayment.  In the event the Audit discloses that a Party hereto underpaid the other Party hereto in excess of five percent (5%) of the amounts owed to it, the underpaying Party shall also reimburse the underpaid Party for reasonable costs and expenses associated with such Audit.

4.1

Proprietary Rights. 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 Content and the Company Data, subject to Semasio’s usage rights as set forth in this Agreement.

4.2

Feedback.  Company may, but is not obligated to, provide or submit any suggestions, feedback, comments, ideas, or other information relating to the Platform and/or Services or modifications or enhancements thereto (the “Company Input”).  Any Company Input is provided on a non-confidential basis regardless of any suggestion to the contrary in any Company communication, and Company hereby grants Semasio a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, transferable right and license to exploit such Company Input (directly or through third parties) in any manner without compensation or liability to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, enhancing, improving, promoting, and marketing Semasio’s products and services.

4.3

Data Use.  Semasio shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform and Services and related technology (including, without limitation, information concerning Company Data and any data derived from the use thereof), and Semasio shall have all rights (during and after the Term hereof) to use such information and data as authorized under this Agreement, including to improve and enhance the Platform and Services, for internal purposes, and for such other internal development, diagnostic and corrective purposes related to the Platform and Services as Semasio may determine in its sole and absolute discretion on a royalty free basis, and in aggregate or other de-identified form in connection with its business, notwithstanding anything to the contrary set forth in this Agreement. The foregoing shall constitute Permitted Uses for purposes of this Agreement.

5.1

Restrictions on Use and Disclosure.  Each Party agrees: (a) to protect and safeguard the other Party’s Confidential Information against unauthorized use, publication or disclosure with the same degree of care that it uses to protect the confidentiality of its own Confidential Information and, in any event, not less than reasonable care; (b) to restrict access to the other Party’s Confidential Information to those of its officers, directors, employees, agents, attorneys, accountants, investment advisors, and contractors who have confidentiality obligations that afford the Confidential Information a substantially similar level of protection as is afforded by this Agreement; and (c) not to use, or permit others to use, the other Party’s Confidential Information except as is reasonably necessary to perform its obligations or exercise its rights under this Agreement.  Each Party shall return or destroy all Confidential Information of the other Party upon the termination or expiration of this Agreement or upon the request of the other Party; provided, however, neither Party shall be required to return or destroy information or materials that it must retain during or after termination or expiration of this Agreement in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement or in order to remain compliant with a valid law, regulation, or court or administrative order.

5.2

Exceptions. Notwithstanding any other provision of this Agreement, each Party may disclose Confidential Information of the other Party if such disclosure is required by an order of a court or other governmental authority, law or regulation, but only to the extent that any such disclosure is necessary and after notice to the other Party if practicable. In such case, the Party required to make the disclosure shall, at the other Party’s expense, assist the other Party in obtaining an order protecting the Confidential Information from public disclosure, or in otherwise minimizing and limiting the breadth and scope of such disclosure.

5.3

Confidentiality of Agreement. Each Party agrees that the terms and conditions of any Order Form or other writing signed by the authorized representatives of the Parties that incorporates these Terms by reference shall be treated as Confidential Information, provided, however, that each Party may disclose such information: (a) as required by any court or other governmental body, subject to the provisions of Section 5.2; (b) in connection with an initial public offering or other securities filing; (c) to legal counsel of the Parties; (d) in confidence, to accountants, banks, and financing sources and their advisors; (e) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (f) in confidence, in connection with an actual or prospective merger, acquisition or similar transaction, provided that the Party seeking to so disclose pursuant to (a), (b), or (f) above must provide advance written notice to the non-disclosing Party of any proposed disclosure, to the fullest extent lawfully allowed, and provide the non-disclosing Party with an opportunity to request appropriate protections of its Confidential Information (e.g., protective order or confidential treatment) and shall assist in such efforts using its reasonable best efforts.

5.4

Remedies.  Each Party understands and acknowledges that any disclosure or misappropriation of any of the disclosing Party’s Confidential Information in violation of this Agreement may cause the disclosing Party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the disclosing Party shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief as the disclosing Party shall deem appropriate.  Such right of the disclosing Party shall be in addition to the remedies otherwise available to the disclosing Party at law or in equity.

6.1

Term.  Unless terminated earlier by either Party in accordance with Section 6.2, this Agreement 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.

6.2

as to the Agreement in its entirety, by either Party if the other Party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach;

• as to the Agreement in its entirety, by either Party if the other Party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach;

• as to any Order Form, by either Party to the Order Form, if the other Party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after written receipt of such breach, it being agreed that any such termination shall apply only to the Services in the applicable Order Form; or

• by a Party (i) if the other Party becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such Party shall only be in breach if such petition or proceeding has not been dismissed within ninety (90) days.

6.3

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 and its provision of the Platform or Services: (a) presents a legal or regulatory risk, (b) could cause damage to Semasio’s reputation, (c) may be in violation of applicable law, rule, regulation, or order, or (d) 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 any of Semasio’s other rights and remedies in law or equity. Additionally, Semasio may suspend the delivery of the Platform and/or Services pursuant to an Order Form if fees payable with respect thereto remain unpaid after the due date.

6.4

Effect of Termination or Expiration. Upon termination or expiration of this Agreement or any Order Form: (i) Semasio shall deauthorize Company’s user logins and passwords and terminate the applicable portion of Company’s access to the Platform and/or Services (as determined by the nature of such termination), and Company shall immediately cease all use of the Platform and/or Services terminated thereby.  Additionally, (a) both Parties will destroy or return, as requested by the other Party in writing, all Confidential Information of the other Party and copies thereof, and (b) Company will promptly (not to exceed fifteen (15) business days) pay any amounts accruing to Semasio prior to such termination or expiration under the terms of this Agreement. This Section is not intended to limit any remedies that may be available to a Party for an improper termination or breach of this Agreement by the other Party.

6.5

Survival of Provisions.  Sections 1, 2.1, 2.2(d), 2.3, 2.4, 3, 4, 5, 6.3, 6.4, 7.4, and 8 through 11, as well as any other terms hereof that by their intent or meaning would reasonably be deemed as intended to so survive, shall survive any termination or expiration of this Agreement.  No termination hereunder shall constitute a waiver of any rights or causes of action that either Party may have based upon events occurring prior to the termination date.

7.1

Mutual Warranties.  Each Party represents, warrants, and covenants: (a) it has the power to enter into and perform this Agreement; (b) neither the execution of the Agreement nor the performance or consummation of the transactions contemplated by it would constitute a default or violation of the Party’s charter documents and/or cause a default under any other agreement to which it is a party; and (c) it will comply with all Applicable Laws in the performance of its obligations under this Agreement.

7.2

Semasio Warranties. Semasio represents and warrants: (a) the Platform does not and will not violate or infringe upon the Intellectual Property Rights of any third party; (b) no portion of the Platform will contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines, and (c) the Services will be performed materially in accordance with this Agreement and the Documentation.

7.3

Company Warranties.  Company represents and warrants: (a) it shall comply with its obligations in Section 2 of these Terms; (b) the Company Data provided to Semasio has been collected, stored and processed by Company and has been supplied to Semasio in accordance with all Applicable Laws and this Agreement; (c) the Company Data and the Content does not and will not violate or infringe upon the Intellectual Property Rights of any third party and shall comply with all Applicable Laws; (d) none of the Company Data and/or Content will contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines; (e) it shall not use any Personal Data except as permitted by Applicable Laws and this Agreement; and (f) it shall be solely responsible for the legality, reliability, integrity, accuracy and quality of the Company Data it shares with Semasio and the use thereof in accordance with this Agreement by either Party, such that all Company Data is accurate and up-to-date (including with respect to opt-out or suppression information).

7.4

Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PLATFORM, SERVICES, OUTPUTS AND SEMASIO DATA ARE PROVIDED TO COMPANY “AS IS”. SEMASIO 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SEMASIO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OUTPUTS, OR THE SEMASIO DATA WILL (I) BE UNINTERRUPTED; (II) BE FREE FROM INACCURACIES, ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS; (III) MEET COMPANY’S REQUIREMENTS; OR (IV) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE COMPANY USES. SEMASIO IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY.

8.1

Exclusion of Consequential Damages.  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. FOR THE SAKE OF CLARITY, THE PARTIES AGREE THAT ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES SUFFERED BY A THIRD PARTY WHICH ARE AN ELEMENT OF LOSS OR DAMAGE SUBJECT TO INDEMNIFICATION UNDER THIS AGREEMENT SHALL BE CONSIDERED DIRECT DAMAGES HEREUNDER.

8.2

Limitation on Liability.  EXCEPT FOR SEMASIO’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.2, SEMASIO’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), WILL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID AND PAYABLE UNDER THE APPLICABLE ORDER FORM GIVING RISE TO THE CLAIM THAT WERE PAID AND/OR PAYABLE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM.

9.1

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 attached hereto shall apply and each Party shall comply with its respective obligations thereunder and applicable Data Protection Laws.

9.2

Company agrees not to provide any Company Data to the Platform under this Agreement 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. Company acknowledges that certain Territories may require supplemental data protection and/or data transfer terms.

9.3

Except as expressly authorized by Semasio in an Order Form (or separate written agreement) signed by the authorized representatives of the Parties, under no circumstances will Company export any Personal Data to data environments owned or operated by Company or the Company Clients. Personal Data may not be exported off the Platform except to the Designated Third Party Platforms identified in the applicable Order Form(s).

10.1

Indemnification from Company.  Company shall indemnify and hold Semasio and its Affiliates, and their employees, representatives, agents, directors, officers, managers, members, and/or shareholders (the “Semasio Indemnified Parties”) harmless, and at Semasio’s option defend the Semasio Indemnified Parties, from and against any damages, losses, costs, settlements, judgments, awards, fines, penalties, interest, liabilities, or expenses (including without limitation, reasonable attorneys’ fees and disbursements and court costs) (“Losses”) incurred in connection with any third-party claim, demand or action, including from a regulator or other governmental authority (“Claim”) brought against any of the Semasio Indemnified Parties arising out of or related to (a) Company’s use of the Platform and Services, including Company’s use of any Personal Data in connection therewith, other than in accordance with this Agreement and Applicable Law, (b) any breach by Company of any provision of this Agreement, or (c) Company’s bad faith, gross negligence or willful misconduct.

10.2

Indemnification from Semasio.  Semasio shall indemnify and hold Company and its Affiliates, and their employees, representatives, agents, directors, officers, managers, members, and/or shareholders (the “Company Indemnified Parties”) harmless, and at Company’s option defend the Company Indemnified Parties, from and against any Losses incurred in connection with any third-party Claim brought against any of the Company Indemnified Parties to the extent arising out of or related to  (a) any allegation that the Platform violates or infringes upon the Intellectual Property Rights of any third party, (b) any breach by Semasio of its representations and warranties in Section 7.2, and (c) Semasio’s bad faith, gross negligence or willful misconduct.  If any of the Platform becomes, or in Semasio’s opinion is likely to become, the subject of an infringement claim, Semasio may, at its sole option and expense, either (x) procure for Company the right to continue using the applicable Platform, (y) replace or modify the applicable Platform so that it becomes non-infringing, or (z) solely if clauses (x) and (y) are not commercially viable, terminate this Agreement. Notwithstanding the foregoing, Semasio will have no obligation with respect to any Claim related to (i) any use of the Platform by Company not in accordance with this Agreement, (ii) any use of the Platform by Company in combination with other products, equipment, or software not supplied by Semasio, (iii) any modification of the Platform by (a) any person other than Semasio or its authorized agents or subcontractors or (b) by Semasio or its authorized agents or subcontractors in compliance with the designs, specifications, or instructions of Company; (iv) the direct or contributory infringement of any process patent by Company through the use of the Platform; and (v) continued allegedly infringing activity by Company after Company has been notified of the possible infringement and has been provided with an updated, non-infringing Platform.

10.3

Indemnity Process.  An indemnitee under this Section (an “Indemnitee”) must (i) promptly notify the indemnitor (an “Indemnitor”) in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the Indemnitor of its obligations hereunder except to the extent that the delay impairs its ability to defend); (ii) provide Indemnitor with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at Indemnitor’s expense, to the extent of any out-of-pocket expenses); and (iii) subject to the Indemnitee’s election to have the Indemnitor defend the Indemnitee, give the Indemnitor full control and sole authority over the defense and settlement of such Claim, subject to Indemnitee’s approval of any such settlement, which approval will not be unreasonably withheld or delayed. The party defending a Claim 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.

11.1

Order of Precedence. In the event of a conflict between or among the following documents, the documents shall govern in this order: (a) the Data Protection Addendum, including all annexes, schedules, and exhibits incorporated by reference, (b) these Terms, including all schedules and exhibits incorporated by reference, and (c) the applicable Order Form. Notwithstanding the foregoing, in the event of any conflict between any Order Form and the provisions of this Agreement, including the DPA, the Order Form shall prevail solely to the extent the Order Form specifically identifies the provisions of the Agreement or DPA to be overridden or modified.

11.2

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.

11.3

Governing Law; Jurisdiction. Except as otherwise provided in the DPA or in an Order Form signed by the authorized representatives of the Parties, the 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.

11.4

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.

11.5

Recovery of Fees by Prevailing Party.  If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one Party against the other Party relating to this Agreement or the breach or alleged breach hereof, the prevailing Party in any final judgment or arbitration award, or the non-dismissing Party in the event of a voluntary dismissal by the Party instituting the action, will be entitled to reimbursement from the other Party for the full amount of all reasonable expenses, including all court costs, arbitration fees, and actual attorneys’ fees paid or incurred in good faith.

11.6

Severability; Waiver.  If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity of other provisions of this Agreement will not in any way be affected thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.  A waiver of a Party’s breach of any provision of this Agreement will not operate as or be deemed to be a waiver of that Party’s prior, concurrent or subsequent breach of that or any other provision of this Agreement.

11.7

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.

11.8

Export Control and Sanctions Compliance. Company acknowledges that the Platform and Services are subject to export control and sanctions laws, including those of the United States. Company agrees to comply with such laws in connection with its performance of the Agreement. Without limiting the foregoing, Company shall not, without any required authorization, directly or indirectly, provide, sell, or otherwise transfer any part of the Platform, Services, or Outputs: (i) into (or to a national or resident of) Belarus, Cuba, Iran, North Korea, Russia, Sudan, Syria, the Crimea region or any other country or territory against which the U.S. maintains economic sanctions or embargoes; (ii) to any organization, entity or individual listed on the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, and the Sectoral Sanctions Identifications List, maintained by the U.S. Treasury Department's Office of Foreign Assets Control or the Denied Persons List, Entity List, and Unverified List, maintained by the Bureau of Industry and Security of the U.S. Department of Commerce, including but not limited to certain entities in China that have been identified on the Entity List, and the sanctions lists maintained by the U.S. State Department; (iii) to any country, entity, or individual to which such transfer is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of transfer without first obtaining such license or approval.

11.9

Anti-Bribery and Anti-Money Laundering. Company agrees it will comply with all applicable anti-corruption, anti-bribery, anti-money laundering, and similar laws, and represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of such laws.

11.10

Marketing.  Company hereby grants to Semasio a non-transferable, non-exclusive, non-sublicensable, royalty-free, right and license to use and display those trade names, trademarks, service marks, and logos (collectively, “Marks”) of the Company in fulfillment of its obligations under this Agreement and in other promotional materials for Semasio’s business and services for the purposes of promoting the existence of the relationship between the Parties as set forth in this Agreement.  Semasio may issue a press release, subject to the prior review of the Company, relating to this Agreement or the relationship of the Parties without the prior written consent of Company.  Except as set forth above, neither party may use the other party’s Marks for any purpose without the prior written consent of such other party.  Company shall provide Semasio with access to all brand awareness insights derived from the implementation and use of the Semasio Data.

11.11

Notices.  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.

11.12

Entire Agreement; Headings
The provisions of this Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof, and this Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter.  Use by Company of shrink wrap agreements and click wrap agreements and similar acknowledgements shall specifically be of no force or effect and shall not serve to modify, amend or supersede this Agreement. The headings to the sections of this Agreement are used for convenience only.