ONLINE TERMS AND CONDITIONS (DEMAND)
Whereas the Advertiser is the owner or has legal rights in the Advertising Materials and the Advertiser wishes Publisher to promote, distribute and display the Advertising Materials (as defined in the IO attached) through the Publisher Technology on the applicable Inventory (“Service”); and
Whereas the Publisher is the owner or has legal rights in the ad-serving in-image network (“Publisher Technology”) and Inventory and has the technical and professional skills to perform the Service.
Now therefore the Parties have agreed as follows:
1.1. “Confidential Information” means any non-public, proprietary, confidential or trade secret information of a Party that a reasonable person or entity should have reason to believe is proprietary. Confidential Information shall not include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development or (iv) required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a protective order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality.
1.2. “End User(s)” means an individual viewing the Advertising Material through the Inventory.
1.3. “Fraudulent Activity” means initiating or using in any Advertising Material in connection with this Agreement or placing the Advertising Material that contains any content that: (i) violates any applicable law or regulation or contains any part of the Prohibited Content (as defined below) as well as is inconsistent with industry best practices, including applicable compliance guidelines; (ii) violation of this Agreement; (iii) encouraging or incentivizing End Users to visit, click or use the Advertising Material or any related or linked content for the purpose of generating actions, revenues in an illegal manner; (vi) automated or fraudulent tracking methods; or (iv) use or employ any misleading, fraudulent or inappropriate practices that may deceive the End User.
1.4. “Prohibited Content” shall mean and any activity or use of content within the Advertising Materials or the Publisher Properties that are: (i) illegal or violates any applicable law, regulation or order of any court or tribunal; (ii) has adversely affect public or private infrastructure or equipment; (iii) violates any third party right including without limitation, intellectual property rights and privacy rights; and (iv) use, endorsement or promotion of content which is adult content, pornographic, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, gambling and gambling-related, or discriminatory activity, promotes illegal drugs or arms trafficking, counterfeiting money, violates export control laws, offensive, misleading or deceptive material, or is any type of malware or spyware.
1.5. “Intellectual Property” means all proprietary and intellectual property rights, including, without limitation, any trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know-how, Confidential Information and proprietary technology, either registered or unregistered which is currently owned by a Party or which may be developed or owned by it in the future.
2. LICENSE GRANT
2.1. Subject to the terms and conditions of this Agreement, Advertiser hereby grants to Publisher and the applicable third parties operating any platform used by Publisher a royalty-free, worldwide right and license to use, reproduce, technically modify, distribute, present and display the Advertising Material and use the Advertiser’s applicable logos, marks or trademarks solely in connection with this Agreement (“License”).
2.2. The form, timing and frequency in which the Advertising Material are presented, displayed and distributed shall be determined by Publisher in its sole and absolute discretion. In addition, Publisher retains the right at its sole discretion to determine the setting, features, functionality and look and feel of the Service and upgrade or update the Publisher Technology at any time.
2.3. Advertiser acknowledges and agrees that: (a) the Advertising Material may be displayed on the Inventory in conjunction with other advertisers or content of third parties that are using the Inventory or Publisher Technology; and (b) Publisher makes no guarantee with respect to the placement, order and number of times the Advertising Material will appear on the Inventory.
3. REPRESENTATIONS AND WARRANTIES
3.1. Each Party represents and warrants to the other Party that: (a) it has the full corporate right, power and authority to enter into this Agreement; (b) the execution of this Agreement does not and will not violate any agreement to which it is a Party or by which it is otherwise bound; (c) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation, enforceable in accordance with its terms; and (d) it complies with any and all applicable laws and regulations applicable in the relevant jurisdiction, practices and procedures while performing its obligations hereunder including industry best standards.
3.2. Advertiser hereby represents and warrants that: (a) the Advertiser activity and the Advertising Material are compliant with all applicable laws and regulations as well as industry best practices, including, without limitation, the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and CAN-SPAM Act of 2003 (“CAN-SPAM”); (b) it owns or has the valid legal right or license to use and distribute the Advertising Material to the extent required under this Agreement, and the Advertising Material do not and will not, during the term of the Agreement, infringe or violate any Intellectual Property Right or any other right of any person or entity; it is hereby clarified that the Advertiser solely responsible for the Advertising Material Materials and any content or technology that may be reached or linked via the Advertising Material; and (c) if applicable, the Advertising Material and the related content will include a clear description of any End User information that may be accessed, collected, stored, used or shared by Advertiser. Publisher will not be responsible for any discrepancy or misleading actions with respect to Advertising Material and the related content.
3.3. It is hereby clarified that the Publisher does not have any obligation to monitor the Advertising Material, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the Advertising Material. The Service and Publisher Technology, including the Inventory, are provided on an “AS-IS” basis, except as expressly provided in this Agreement and to the fullest extent allowable by law, Publisher makes no other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation, warranties of merchantability, fitness for a particular use or non-infringement or those arising in the course of or connected to the performance hereunder, and disclaims any such warranties. In addition, Publisher does not represent or warrant that the Publisher Technology, Service or Inventory including any part therein will be error free or that any errors will be corrected or that the operation of the Publisher Technology, Service and any Inventory or any part therein will be uninterrupted or that the Advertiser will profit or derive any benefit from the Service.
4.1. In consideration for the Service, Advertiser shall pay the Publisher total amount of Impressions reported by the Publisher, all as detailed and defined in the IO.
4.2. The payment of the consideration must be made 30 days from the end of the month (unless otherwise agreed between the Parties). Unpaid charges are subject to interest of 1.5% per month on any outstanding balance, plus all expenses of collection. In the event of any failure by Advertiser to make payment, Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Publisher in collecting such amounts.
4.3. Advertiser is solely responsible for payment of any taxes resulting from the acceptance of the Agreement. If any such taxes are required to be withheld, the net amount payable to Publisher after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. In addition, the Advertiser shall be responsible for all income, sales, business, or any other such form of tax, fee, license or payment due in receipt of the transfer of the property or right to use such property under all circumstances.
5. REPORTING AND TRACKING
5.1. The reporting and tracking shall be based on Publisher’s numbers, reports, statistics and tracking, the Publisher will provide the Advertiser with weekly measurements or statistics regarding the applicable campaign, all as defined in the IO.
5.2. In the event of a dispute, the Advertiser shall provide Publisher with a written notice specifying and detailing (including adding supporting proof) the reasons for the dispute (“Dispute Notice”). Following the receipt of a Dispute Notice the Parties will cooperate, in good faith, in order to resolve any such dispute. It is agreed that receipt of a Dispute Notice or cooperation to resolve any dispute will not affect or delay the payment of any consideration due to Publisher hereunder.
6.TERM AND TERMINATION
6.1. This Agreement shall commence upon the signing date below and will continue until terminated by either Party. Each Party may terminate this Agreement by providing the other Party with a 48-hour prior written notice as detailed in the IO. Upon the termination of this Agreement, for any reason: (a) all rights and License granted herein shall be terminated immediately; and (b) Advertiser’s right to use the Publisher Technology, Service or any part thereof shall cease immediately.
6.2. The Publisher reserves the right to terminate or suspend the Campaign immediately with or without notice in the event it determined, in its sole discretion, that the Advertiser (a) is in breach of this Agreement; (b) provides Fraudulent activity; or (c) damages or harms the Publisher’s reputation in any way. It is hereby clarified that any suspension or reactivation following a suspension shall not require signing a new agreement and this Agreement shall remain in full force and affect during any applicable suspension.
6.3. Advertiser acknowledges and agrees that the Publisher will not be liable to Advertiser or any other person or entity for damages resulting from the termination of the Agreement.
6.4. Following the termination of the Agreement, any provisions of the Agreement that in order to fulfill their purpose need to survive the termination of the Agreement shall survive.
7. DISCLAIMER AND LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, WITH RESPECT TO THE FOREGOING. IN NO EVENT WILL A PARTY OR ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, SOFTWARE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BASED ON CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE PARTY SHOULD HAVE REASONABLY FORESEEN OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. EACH PARTY’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT POSSIBLE BY APPLICABLE LAW. THE TOTAL LIABILITY OF THE PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES MADE UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING ANY CLAIM UNDER WHICH SUCH LIABILITY SHALL ARISE.
Each party (“Indemnifying Party”) shall defend, indemnify and hold harmless the other party (“Indemnified Party”) and its respective officers, directors, employees, agents, successors, licensees, attorneys, suppliers and assigns, and each of them, from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims by third parties resulting from the Indemnifying Party’s material breach or alleged breach of any obligation, representation, or warranty of this Agreement. The Indemnifying Party will fully cooperate with the Indemnified Party in the defense and settlement of any third-party claim and at the Indemnified Party’s reasonable demand, and will assume responsibility for the investigation, preparation, defense, trial and settlement of such claim, with the express provision that Indemnifying Party will not settle the claim without the Indemnified Party’s prior written explicit approval.
During the Term and thereafter, each Party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, during the term of this Agreement and for a period of one (1) year upon termination to prevent the disclosure of the Disclosing Party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for the purpose of performing its obligations or exercise its rights hereunder. This Confidentiality section shall survive any termination or expiration of this Agreement.
10. INTELLECTUAL PROPERTY
Each Party retains all rights, title in and to all its Intellectual Property rights including without limitation goodwill, copyrights and moral rights. Other than expressly stated herein, nothing in this Agreement shall grant either Party any right, title or interest in any of the other Party’s Intellectual Property. The Publisher is the sole and exclusive owners of all property rights or interests, legal or beneficial, tangible or intangible, of any sort and kind, in any shape or form, in connection with the Publisher Technology and Services, including but not limited to, intellectual and industrial property rights, know-how, trade secrets, developments, and any data of any sort and kind, oral, written or otherwise, and Advertiser will not claim, breach, violate or infringe in any way whatsoever these rights.
11.2. Neither Party shall be entitled to assign or transfer the Agreement or any of its rights or delegate any of his obligations hereunder without providing prior written notice to the other Party.
11.3. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder due to any condition beyond its reasonable control, including without limitation to, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war and governmental action.
11.4. The Parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create any agency, partnership or joint-venture relationship between the Parties. Neither Party shall be deemed to be an employee or legal representative of the other, nor shall either Party have any right or authority to create any obligation on behalf of the other Party.
11.5. If any provision of the Agreement is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise unenforceable, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions will not be affected and will continue in full force and effect. The failure to require performance of any provision of the Agreement shall not affect a Party’s right to require performance at any time thereafter; nor shall a waiver of a breach of any provision constitute a waiver of the provision itself or a waiver on another occasion.
11.6. The Agreement and any matters related hereto shall be governed by, and construed in accordance with Israeli law without regard to its conflicts of law principles or provisions, and shall be subject to the exclusive jurisdiction of the authorized courts of Tel Aviv-Jaffa, to the exclusion of any other court.