Terms of Service

Last updated May 24th, 2023.

Welcome to use zMaticoo system service!

The zMaticoo system is operated by ZMATICOO INC and its affiliates (" We "or the" Company "). The User of the Service (" Partner ") expressly understands that you acknowledge and agree to the contents of this Agreement and that you and ZMATICOO INC and its Affiliates enter into an agreement relationship. Please read the contents of this Agreement carefully and guarantee that you have fully mastered and fully known and understood the contents of this Agreement. By clicking "Yes", you mean that you agree to be bound by this Agreement and are willing to assume the obligations and legal responsibilities hereunder. You will use our Services on behalf of a company, partnership, organization, government or other institution (your "Institution"), and you warrant and warrant that your business entity is a legally incorporated and validly existing legal entity and that you are authorized to do so and to cause your institution to be bound by this Agreement.

You must confirm that you have full civil capacity, have reached the age of 18 or above, or have reached the age of 16 and rely on your earned income as your primary source of income, and have the right and ability to agree to all of these terms and related agreements. The Platform does not encourage minors to use relevant services. Minors should entrust their guardians to operate the services or operate with the express consent of their guardians, otherwise they may not use the services of the system. The guardian of the minor user is requested to fulfill its duty of guardianship. The Platform shall not assume any responsibility for the behaviors of underage users in the process of using the system and all consequences arising from their use of the system services.

Terms and Conditions

1.DEFINITIONS

In this Agreement, the following terms as used herein, shall have the meanings set forth below:

“Advertising Inventory” means the worldwide geo-targeted advertising space available on each website, including the Deliverables. “Worldwide geo-targeted advertising space” means all advertising on the websites viewed by visitors located anywhere in the world.

“Advertising Materials” means artwork, copy, Marks, or active URLs for advertisements, and the tags therefor.

“API” means Company’s application programming interface, and its related tools and information, which will interact with the Partner.

“Bid” means a response to a Bid Request, submitted to the Company by a Partner through the API, based on the Bid Data, that will be entered into the auction that is completed for the applicable Deliverable (as further set out in the Functional Specifications).

“Bid Data” means a Client’s own data and information, including the Advertising Materials and the Client’s CPM-based bid price for any particular Deliverable.

“Bid Request” means any request sent through the Partner for bids on a Deliverable. Each Bid Request shall include certain parameters, consistent with Company’s management of the Exchange’s user interface, which may or may not be aligned with any Client’s Bid Data.

“Clients” means the agencies, advertisers and/or group of advertisers, in each case as approved by Company (in writing, by email or by course of conduct), that purchase (directly or indirectly) Advertising Inventory through Partner to place advertisements on the websites.

“Deliverables” means the impression inventory delivered by Company for auction through the Exchange.

“Demand-Side Platform” or “Partner” means online advertising platform, including all related technology, software, tools and infrastructure, that allows Clients to purchase, in near real time, impression inventory (across websites that are owned, operated or controlled by Company, or to which Company has a contractual right to serve advertisements) delivered for auction by Company.

“Functional Specifications” means, subject to being finalized by the parties in accordance with Section 1.01 the functionality, attributes and performance specifications of the Exchange, as set out in Exhibit A (which Functional Specifications shall be substantially similar to, and dependent upon, the underlying functionality, attributes and performance specifications of the Company as of the Launch Date).

“Interaction Data” means data collected solely from and relating to a web user’s interaction with advertisements sold and delivered as part of the Advertising Inventory, excluding any information that directly or indirectly connects such data to the applicable website or its brand, content and context. For greater certainty, Interaction Data stops at the Client’s website (i.e. once a web user has clicked a Client’s advertisement and reached the Client’s website, any data tracked or collected thereafter is proprietary to, and can be used by, the Client in its sole discretion).

“Launch Date” means date on which Bids may be submitted in a live production environment.

“Maintenance Services” means those maintenance services to be provided by Company in respect of the Exchange associated with keeping it functioning in accordance with its Functional Specifications, including without limitation as set out in Exhibit B.

“Minimum Price” means, in connection with any Deliverable, a minimum CPM-based bid price therefor.

“Marks” means domain names, trade-marks and logos and other branding elements of each party used in the performance of this Agreement.

“Tags” means scripts that communicate with servers designated by Partner and request transmission from those servers of advertisements.

“Business Day” means any day other than a Saturday, Sunday or statutory holiday in the China.

2.SERVICES

2.1.Engagement of Services. Partner hereby retains Company to provide the following services (collectively the “Services”):

2.1.1.customize and implement an online advertising exchange (the “Exchange”) that performs in accordance with the Functional Specifications, which Exchange shall allow Partner to purchase Deliverables in near real time;

2.1.2.host the Exchange;

2.1.3.provide Maintenance Services; and

2.1.4.as necessary, provide customization and support services, including reasonable education and support, during normal business hours, to Partner; and Company accepts such retainer, all in accordance with, and subject to, the terms and conditions of this Agreement.

2.2.Exchange – Acceptance.

2.2.1.The parties shall co-operate to finalize the Functional Specifications, and Company shall use commercially reasonable efforts to implement the Exchange to reflect any mutually agreed-upon changes by no later than (i) the Launch Date or (ii) such other date as may be agreed to by the parties in writing or by email (the “Initial Delivery Date”). Any custom Functional Specifications, if available, will be subject to available developer time and resources, as well as the practicality of the request.

2.2.2.The Exchange shall conform to the Functional Specifications. Following the Initial Delivery Date, Partner will use commercially reasonable efforts to timely review, test (including in respect of functionality, performance and usability) and either approve or reject the Exchange. Partner shall provide reasons for any rejection, suggesting modifications as appropriate, on an iterative basis, and Company will correct and re-deliver the Exchange until it is in a form acceptable to Partner, acting reasonably. In the event that the Exchange does not meet Partner’s final reasonable approval at least one (1) day prior to the Launch Date, either party may (without incurring any liability) terminate this Agreement upon written notice to the other party.

3.REPRESENTATIONS, WARRANTIES & COVENANTS

3.1.Mutual Representations, Warranties & Covenants.

Each party represents, warrants and covenants throughout the Term to the other party that it:

3.1.1.has the authority to enter into this Agreement, that its execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party, and that the terms and conditions hereof are binding on it;

3.1.2.has sufficient rights to grant any licenses granted hereunder; and

3.1.3.will comply with all applicable laws, rules guidelines and regulations, including without limitation any laws that apply to the use, retention and disclosure of personal information.

3.2.Partner Representations, Warranties & Covenants.

Partner further represents, warrants and covenants throughout the Term that:

3.2.1.it will not, and will ensure that the Clients do not, use any device, software or routine to interfere with the proper working of the Exchange;

3.2.2.Its use of the Exchange shall at all times be in accordance with the Functional Specifications and such other reasonable instructions as may be communicated by Company to Partner from time to time;

3.2.3.the Partner Marks will not infringe upon any Intellectual Property Rights of any third party and Partner is the owner or licensee of all Intellectual Property Rights in the Partner Marks;

3.2.4.it will not (and will not allow any third party to): (i) copy or duplicate the Exchange , the Company or Services; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Exchange or the Company; (iii) modify (except as permitted under this Agreement), translate, or create derivative works based on the Exchange or the Company; (iv) rent, lease, distribute, sublicense, resell, pledge, assign, or otherwise transfer or encumber rights to the Exchange; or (v) remove or otherwise alter any proprietary notices or labels from the Exchange or any portion thereof;

3.2.5.it will strictly enforce its payment obligations; and all of the Advertising Materials are in material accordance with Company’s then existing advertising criteria (including content limitations, privacy policies, policies regarding consistency with Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the website on which the ads are to appear), or other editorial policies, and material due dates) (collectively “Policies”).

3.2.6.it will implores the utmost and stringent policies regarding the Advertising Materials. All the Advertising Materials do not and will not:

  • contain, promote or have links to any sexually explicit materials, hate material, obscene language, defamatory materials, materials promoting violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or family status, or any other materials deemed harmful to the reputation of Company in its sole discretion;
  • promote or reference any software piracy systems (wares, cracking, etc.), hacking, phreaking, emulators, ROM’s, or illegal MP3 activity;
  • promote any illegal activities, deceptive practices, violations or infringements of the Intellectual Property Rights of others; or
  • promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail or the use of spyware program.

3.2.7.If the third party complains to Company that the designated information and the product/service of the linked page is illegal and provides legal basis, Company shall immediately delete such information. Partner shall assume all liability for the results. In addition, service suspension under this clause shall not exempt Partner from making payment for services that has already been provided and Partner shall compensate Company for all losses incurred thereof.

4.DATA PRIVACY

Company and Partner agree to comply with relevant data protection laws and regulations, including but not limited to General Data Protection Regulation (“GDPR”) and other laws and regulations.

5.INTELLECTUAL PROPERTY

5.1.Services, Exchange and Platform.

5.1.1.Company retains all right, title and interest in and to, and all Intellectual Property Rights embodied in, the Services and the Exchange. For greater certainty, Company gains no proprietary right, title or interest in or to the Partner other than the limited rights granted by Partner hereunder. If Partner requests or suggests customizations, modifications or other specific programming to modify or improve the Services, the Exchange or the Company (collectively, “Modifications”), Partner agrees that all Intellectual Property Rights in or to all such Modifications, and in or to all of the corresponding Functional Specifications are hereby assigned to Company and shall be the exclusive property of Company.

5.1.2.Subject to Partner’s compliance with the terms and conditions of this Agreement, Company agrees that Partner has a limited, revocable, non-transferable, non-exclusive right to access and use the Exchange and the Company (only to the extent it is incorporated into, and forms part of the functionality of, the Exchange) during the Term solely as provided herein.

5.2.Marks. Each party agrees to not use the other’s Marks without express written consent.

5.3.Data. Each of Partner and Company will own the Interaction Data that it collects. Partner will not collect or use any personal information through the websites (including without limitation through collection or use of Interaction Data). All other data collected directly on any of the websites shall be owned by Company and any rights not expressly granted herein are hereby reserved by Company.

5.4.Advertisements. Company acknowledges and agrees that it does not have any rights in or title to any of the Intellectual Property Rights contained in the Clients’ Advertising Materials, except for the right to display the Clients’ advertisements on the websites in accordance with this Agreement. Company agrees that it will not use the Advertising Materials for any purpose other than display on the websites as contemplated herein.

6.CONFIDENTIALITY

6.1.Definition. As used in this Agreement, the term “Confidential Information” shall mean all information of either party not generally available to the public which is provided to the receiving party by the disclosing party or which the receiving party has access to or discovers in the performance of this Agreement, including without limitation all information relating to a party’s products, business, and operations (including without limitation business plans, financial records, customers, suppliers, vendors, products, costs, sources, strategies, inventions, procedures, forecasts, sales materials and data, technical advice or knowledge, contractual agreements, pricing, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies, algorithms, designs, drawings, work sheets, blueprints, manufacturing processes, computer programs and systems, and know-how or other intellectual property of a party and its affiliates that may be at any time furnished, communicated, or delivered by a party to the other party, whether in oral, tangible, electronic, or other form). All Confidential Information shall remain the property of the disclosing party.

6.2.Obligations. Each party agrees that it will not disclose any Confidential Information of the other party to any third party, and that it will not use Confidential Information for any purpose not permitted under this Agreement. Each party will protect the Confidential Information of the other party in the same manner that it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care. This Article 7 supplements and does not supersede any existing non-disclosure or confidentiality agreements between the parties.

6.3.Exceptions. The foregoing obligations shall not apply to the extent Confidential Information of a disclosing party: (a) must be disclosed by the receiving party to comply with any requirement of law or order of a court or administrative body including any applicable stock exchange (provided that each party agrees, to the extent legally permitted, to notify the other party upon the issuance of any such order, and to cooperate in its efforts to convince the court or administrative body to restrict disclosure); or (b) is known to or in the possession of the receiving party prior to the disclosure of such Confidential Information by the disclosing party, as evidenced by the receiving party’s written records; or (c) is known or generally available to the public through no act or omission of the receiving party; or (d) is made available free of any legal restriction to the receiving party by a third party; or (e) is independently developed by the receiving party without use of any Confidential Information.

7.INDEMNIFICATION AND LIMITATION OF LIABILITY

7.1.Limitation of Liability. IN NO EVENT SHALL Company BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, OR LOSS OF CLIENTS, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF Company WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Company’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY Partner TO Company DURING THE THEREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

7.2.Disclaimers. EXCEPT AS EXPLICITLY PROVIDED HEREIN, Company MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND REGARDING THE Company, THE EXCHANGE, THE SERVICES OR THE API, AND EXCEPT AS EXPLICITLY PROVIDED HEREIN, Company HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR FREE OPERATION, QUALITY, ACCESSIBILITY, NON-INFRINGEMENT OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE. FOR GREATER CERTAINTY, Company DOES NOT REPRESENT OR WARRANT THAT THE Company, THE EXCHANGE, THE SERVICES OR THE API WILL OPERATE SECURELY OR WITHOUT INTERRUPTION; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM CLIENTS’ USE OF THE EXCHANGE.

8.Indemnification.

Partner hereby agrees to defend, indemnify and hold harmless Company, the registered websites, the delivered medium and their respective officers, directors, agents and employees from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of: (i) any breach (or, as to defense obligations only, alleged breach) by Partner of any term, condition, representation or warranty under this Agreement;(ii) the Advertising Materials or the Functional Specifications; (iii) Partner’s use of the Exchange; (iv) the infringement of the Partner, the Client, the Functional Specifications, the Advertising Materials, or Partner’s Marks on the Intellectual Property Right of a third party. Notwithstanding the foregoing, Partner will have no liability for any claim where the claim results from the method or manner solely chosen by Company to implement such specifications or direction, or otherwise arises solely from Company’s use of the Exchange; (v) Partner’s gross negligence, willful misconduct or fraudulent actions; or (vi) the infringement of the Partner of any registered patent or any copyright.

In addition to any other rights and remedies available to Company under the Agreement or the applicable law , Company reserves the right to stop the Services, and/or disclose Partner’s identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been damaged by Partner’s actions, and until full indemnification, Company shall have the right to withhold and freeze any unpaid amount for Partner.

9.GENERAL

9.1.Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the China, without giving effect to principles of conflicts of law. Any dispute arising from the conclusion, validity, performance and interpretation of this Contract shall be settled by both parties through negotiation. If no agreement can be reached through negotiation, the dispute shall be submitted to Xi 'an Arbitration Commission for arbitration in accordance with its arbitration rules then in force. The arbitral award shall be final and binding upon both parties. The place of arbitration shall be Xi 'an, China.

9.2.Waiver/Severability. The waiver by either party of a breach or right under this Agreement will not constitute a waiver of any other or subsequent breach or right. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of this Agreement, which will otherwise remain in full force and effect.

9.3.Force Majeure. Neither party shall be liable to the other party for any delay or failure in performance under this Agreement arising out of a cause beyond its control and without its fault or negligence. Such causes may include, but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of regulatory agencies, or national disasters.