TERMS & CONDITIONS
1.1. “Fraudulent Activity” shall mean initiating or using any promotion or actions which: (i) violates any applicable law or regulation or is inconsistent with industry best practices; (ii) generating internet traffic in non-human means that are determined by Service Provider to be invalid, fraudulent or automated for the purpose of increasing click, action and the Revenue Share (such as, but not limited to, fictitious ad impressions, automatically triggering actions, etc.); (iii) encouraging, misleading or incentivizing users to visit, click or use the Advertiser Materials for the purpose of generating click or actions, as applicable; or (iv) use or employ any misleading, fraudulent or inappropriate practices that may deceive the user to generate any action or clicks. The Distributor acknowledges that the Service Provider may monitor and detects Fraudulent Activity using various tools and services. In the event that the Service Provider detects any Fraudulent Activity it may, in its sole discretion withhold payments or immediately terminate this Agreement or seek appropriate relief as may be available to it by law.
1.2. “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, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, client list, developments, business partners or other information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. 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.
1.3.”Proprietary Rights” means all intellectual property rights, including, without limitation, inventions, improvements, patents and patent applications, registered and unregistered marks, trademarks, service marks, trade names and associated logos, domain names, copyrights, moral rights, trade secrets and confidential business and technical information, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production, operation and any enhancements or modifications relating thereto, all rights in databases and data compilations, whether or not copyrightable and all copies thereof.
1.4. “Prohibited Content” shall mean any activity or use of content that encourages conduct that would: (i) be considered a criminal offense or could give rise to civil liability, or violates any applicable law, regulation or order of any court or tribunal; (ii) adversely affect public or private infrastructure or equipment; (iii) violate any third party right including without limitation, intellectual property 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-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.
2. LICENSE AND INTELLECTUAL PROPERTY.
2.1. Subject to the terms herein, the Service Provider grant Distributor a revocable, non-exclusive, non-assignable, non-transferable, non-sub-licensable right to use, promote, deliver, make available and implement the Service Provider’s Technology and display the Advertiser Material solely for the purpose of this Agreement and solely during the Term (“License”). The License granted herein shall immediately and automatically terminate in the event the Distributor does not comply with its obligations hereunder.
2.2. Each party retains all right, title, and interest in and to its Proprietary Rights and nothing contained in this Agreement will grant either party any right, title or interest in the other party’s Proprietary Rights. Notwithstanding the foregoing, the Service Provider shall retain all right, title, and interest to the Service Provider’s Technology. All rights in and to the Service Provider Technology and any content therein which are not expressly granted herein are reserved by Service Provider.
2.3. Distributor, nor any third party on its behalf, may not: (i) copy, the Service Provider’s Technology, except where necessary to fulfil its undertakings pursuant to the terms of this Agreement; (ii) syndicate, rent, loan, lease, license, transfer, sell, encumber, or distribute the Service Provider’s Technology to any third party, without the express written authorization of the Service Provider; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service Provider’s Technology; (iv) adapt, alter, modify, translate, or create derivative works of the Service Provider’s Technology without the express written authorization of the Service Provider; or (v) incorporate, integrate or otherwise include the Service Provider’s Technology or any portion thereof into any software, program or product.
3. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
3.1. Each party represents and warrants to the other party that: (i) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) the execution of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound and shall be performed in compliance with all applicable laws, rules, regulations, best industry practice; and (ii) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms.
3.2. The Service Provider hereby represents and warrants that: (i) it solely owns and has legal right to license the Service Provider’s Technology and that the Service Provider’s Technology does not infringe third party rights including Proprietary Rights; (ii) it has obtained all due permissions, rights and licenses to use, distribute and place the Advertiser Materials on the Distributor Properties; (iii) it shall take reasonable commercial efforts to ensure that the Advertiser Material (provided by it) do not targeted nor do they contain any Prohibited Content. Except as set forth herein, the Service Provider disclaims any and all warranties whether express or implied, including specifically the implied warranties of merchantability and fitness for a particular purpose, and the Service Provider’s Technology and any content thereof are provided “AS IS” and “AS AVAILABLE”.
3.3. The Distributor hereby represents and warrants that: (i) It shall implement, integrate and place the Service Provider’s Technology solely in the approved Distributor Properties; (ii) It owns or has obtained all rights in the Distributor Properties and rights to implement the Service Provider’s Technology as well as display the Advertiser Materials therein, and It is solely responsible for the content displayed in or promoted through the Distributor Properties (including the Advertiser Materials if provided by Distributor) and that any content or material displayed or promoted through the Distributor Properties is not prohibited according to any applicable law or regulation, and does not contain, endorse, promote or facilitate any Prohibited Content of Fraudulent Activity or require the user to participate in any online activity nor will it incentivize the user to click or interact with the content using a misleading, fraudulent or inaccurate representation or incentivize automated click or automated interaction with that content; and (iii) it shall not engage in any Fraudulent Activity, including without limitation auto-generation of clicks or any other click scheme or increasing traffic to the Distributor Properties by using and Fraudulent Activity or misleading behavior. Further, it shall not engage in any behavior that may interfere with the Service Provider’s Technology and any content thereof, or replace the content therein.
3.5. The Service Provider reserves the right, in its sole discretion, to reject or remove any content or the Service Provider’s Technology from the Distributor Properties or immediately terminate the Agreement or withhold payment where such Distributor Properties do not comply with the terms stipulated herein, or that in the Service Provider’s sole reasonable judgment, do not comply with any applicable law.
4.1. The Service Provider shall pay the Distributor as set forth in the IO. Notwithstanding the foregoing, Service Provider shall not be obligated to pay and shall be entitled to a refund for (a) payments that were not approved by the Advertisers or the Advertisers did not complete the payment to the Service Provider, in the event the Service Provider shall provide and display the Advertiser Materials; (c) the Service Provider determined, in its sole discretion that the ad impressions, calls and Ad Requests were derived by Fraudulent Activity or otherwise determined that such revenue was attributable to clicks generated by bots, spiders, or other fraudulent means; or (d) clicks executed in breach of this Agreement, execute the limited cap or during a period while this Agreement was terminated.
4.2. In the event the Distributor disputes the Final Report (as defined in the IO) it shall provide the Service Provider with a written notice which shall include detailed information for such dispute, including applicable information (“Dispute Notice”). The Dispute Notice shall be submitted by no later than fifteen (15) days as following the receipt of the Final Report. Upon receiving the Dispute Notice he parties will cooperate, in good faith, to reach an amicable solution to such dispute. Distributor acknowledges and agrees that if no Dispute Notice is received by Distributor within said period then such Report will be considered as final and non-appealable proof. The Service Provider may withhold payment of any disputed amounts until the dispute is resolved.
4.3. Each party shall pay applicable taxes, duties and charges imposed or that may be imposed by any applicable governmental agency in connection with the Agreement.
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 and for a period of one (1) year thereafter to prevent the disclosure of the other party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section. This Confidentiality section shall survive any termination or expiration of this Agreement.
6.TERM AND TERMINATION
Unless terminated, this Agreement shall commence upon the Start Date and continue until terminated by the parties (“Term”). Each party may terminate this Agreement upon 48-hour prior written notice which may be provided via email. Upon termination of this Agreement: (i) the Distributor shall immediately cease serving the Advertiser Materials via the Service Provider’s Technology; (ii) all rights and Licenses granted to the Distributor hereunder shall cease immediately; (iii) the Distributor shall promptly return the Service Providers materials, component and technology, if applicable, including any Confidential Information, or destroy and certify the destruction of any versions of the Service Provider’s Technology. Following the termination of this Agreement, any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination of this Agreement shall be deemed to survive for as long as necessary to fulfill such purposes.
Each party shall defend, indemnify and hold harmless the other 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.
8.LIMITATION OF LIABILITY
Except for Indemnification or confidentiality obligations, in no event, whether as a result of breach of contract, tort (including negligence), strict liability, or otherwise, shall each party and its officers, directors, employees or agents be liable to the other party or any third party for any lost profits or revenues, claims of customers, loss of use of any equipment or software, systems, facilities, loss of data or information, lack or loss of productivity, interest charges or cost of capital, or special, incidental, indirect, consequential, exemplary or punitive damages of any nature, under any theory of liability, including but not limited to contract or tort, and whether or not the party was 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. In no event, will either party’s liability for any claim arising under this Agreement exceed amounts paid by the Service Provider to the Distributor under this Agreement within twelve months (12) preceding such claim.
9.1. The Service Provider may, track and collect data from the Distributor’s end users for quality control, security or service-related monitoring purposes. The Distributor agrees to this and undertakes to notify its users accordingly in its privacy statements. The Service Provider’s available at: http://imonomy.com/privacy-policy/ describes various categories of the data processed, as may be amended from time to time.
9.2. 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.
9.3. 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.
9.4. 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.
9.5. 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.
9.6. 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.