These Terms of Service and the Insertion Order (together, this “Agreement”) are entered into as of the date (“Effective Date”) of the applicable Insertion Order by and between the Publisher (details of which are specified in the Insertion Order, which is an integral part hereof) (“Publisher”) ]. (“Company”). Each Company and Publisher shall be referred to as a “Party” and collectively as the “Parties”.
1. Definitions: Unless otherwise defined herein, capitalized terms shall have the meanings ascribed to them below.
1.1. “Ad”: Any type of content (such as text messaging, audio and video files, rich media, content, text, and graphic files), including but not limited to push notifications, banners, buttons, pop-ups, pop-unders, lightbox interstitials, and text links that are generally used as advertisements.
1.2. “Advertiser”: An entity that makes Ads available on the Platform.
1.3. “Platform”: The Company’s technology that allows Publishers using the Company’s services to present Ads on the Publisher’s defined below Media (and other publishers' media).
1.4. “Applicable Law”: Applicable directives, laws, regulations, and industry standards (“Laws”) (including the Laws that apply to the End User (at their place of residence) of a service or product of the Publisher and the Laws of the United States of America and the European Union and its Member States).
1.5. “End User”: Individual human end users of the Media.
1.6. “Confidential Information”:
The Parties agree that: (A) all information relating to the Solution or access thereto, (B) the Platform or the Tag, (C) any information regarding the content, purpose, design, or function of the Solution, (D) any know-how, technical data, or other information, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, developments, inventions, processes, marketing, or finances that is disclosed to the Publisher; or (E) information concerning End Users interacting with the Ads, shall be deemed as the Company’s Confidential Information; (F) information concerning payouts and rates paid to Publisher.
The Parties understand, however, that Confidential Information shall not include any information that either Party can establish by written record: (1) is already public knowledge without breach of a confidentiality restriction, (2) was known to such Party prior to its negotiations with the other Party, or (3) is hereafter rightfully furnished to a Party by a third party without restrictions on disclosure and without breach of a confidentiality restriction.
1.7. “Tag”: Code that requests an Ad from the Platform (which can often be referred to as JS Tag, Ad Tag, or an SDK in mobile applications), provided by the Company for implementation on Publisher Media.
1.8. “Inventory”: Internet assets in Publisher’s Media in which Ads are displayed, sold by Publisher to Advertisers using the Platform.
1.9. “Media”: Websites, applications, mobile websites, mobile applications, and other media: (i) owned and controlled by Publisher, or (ii) that Publisher otherwise has the contractual right to present and sell Ads on.
1.10. “PP”: The Privacy Policy available on the Platform.
1.11. “Solution”:
The Platform and its components, including but not limited to the methods, tools, and other intellectual property of the Company.
2. License
2.1. Subject to the terms provided herein, the Company grants Publisher a limited, non-exclusive, non-assignable, and non-transferable right to place the Tag on its Media and remotely access the Platform solely for the purpose of presenting Ads on its Media through the Tag, during the Term (defined below). Except for the limited license granted herein, all rights (including intellectual property rights), title, interest, and all copyright rights in and to the Solution and parts thereof are hereby reserved. Publisher hereby grants to the Company, during the Term, a limited, fully revocable, non-exclusive, non-transferable license to integrate the Solution in Publisher’s Properties and to copy, reproduce, and distribute the look and feel of the Publisher Properties solely to enable the Actions in connection with the Company’s Solution by End Users in accordance with the Restrictions and the terms herein.
2.2. Publisher shall not and shall not attempt to: (a) resell, sublicense, lease, time-share, distribute, or otherwise transfer to any third party its right to access and use the Solution or any part thereof; (b) reverse engineer, decompile, or disassemble the Solution or any part thereof; (c) modify, copy, or create derivative works of the Solution or any part thereof; or (d) access the Solution or any part thereof for the purpose of building a competitive product or service or copying its features or user interface or authorize or permit a direct competitor to do so. The Company reserves all rights not expressly granted hereunder.
2.3. Publisher agrees that it is responsible for any acts or omissions of its agents or permitted subcontractors that access or use any of the Solution or any part thereof, and Publisher will ensure that such agents and permitted subcontractors comply with the terms of this Agreement.
3. Publisher’s Representations and Warranties
3.1. Publisher hereby represents and warrants that: (a) it owns and controls the Media; (b) it has the full corporate right, power, and authority to enter into this Agreement, to grant the licenses granted hereunder, and to perform the acts required of it hereunder; (c) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable against each Party in accordance with its terms; (d) it has and will have all necessary rights and authority (1) to enter into this Agreement and (2) to perform its obligations hereunder; (e) its performance under this Agreement and duties hereunder do not and will not breach any agreement to which it is a party or by which it is otherwise bound, or any other obligation that it has with or to any of its advertisers, publishers, networks, or other third parties; (f) Publisher’s Media content, services, products, materials, data, and information used by Publisher in connection with this Agreement as well as the Solution do not and will not (i) violate any Applicable Law, (ii) infringe, misappropriate, or otherwise breach the rights of any third party (including intellectual property rights); (iii) contain any material which is unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable, which by way of example only, might mean that it contains: (1) sexually explicit, pornographic, or obscene content (whether in text or graphics); (2) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise); (3) graphic violence; (4) politically sensitive or controversial issues; or (5) any unlawful behavior or conduct; (g) it has entered (or will enter) into written agreements granting Publisher all necessary licenses, rights, and other similar consents for the display of advertisements in the Media; (h) the Solution and the Company’s activities pursuant to this Agreement (including the methods by which and technology with which data is collected by Publisher and ads are served to End Users) and documentation presented by Publisher to End Users to which the Ad Units are designated have been reviewed by it and are compliant with all Applicable Laws and will not infringe any third-party rights; (i) it will comply with the Company’s Publisher Terms of Service and Privacy Policy; and (j) it will not engage in any action or practice that disparages or devalues the Company and/or the Solution, or the reputation or goodwill of the Company.
3.2. Publisher shall implement the Tag in accordance with the Company’s instructions delivered to Publisher from time to time via the Platform or any other manner.
3.3. Publisher will not modify the Tag or any Ad and will only place the Solution and its Ads in accordance with Applicable Law and reasonable trafficking instructions which may be provided by the Company from time to time. Publisher understands that any modification to the Ad Tags or failure to comply with trafficking instructions may result in errors and discrepancies for which the Company is not responsible.
3.4. Publisher will be solely responsible (a) for the Media (including the content provided therein); (b) for all its use of the Solution hereunder (including, without limitation, the use of Ads and their presentation in the Media); (c) to use the Solution in compliance with Applicable Law and the instructions provided by Advertisers and/or the Company; (d) to obtain, and be deemed to have hereby granted to the Company, all rights necessary to allow the Company to store and serve the Ads or otherwise provide the services hereunder (including the collection of information by the Company according to the terms of the PP); (e) to comply with all policies relating to the Solution, including the Guidelines, attached as Exhibit 3.4, as may be amended/provided from time to time.
3.5. Publisher will not, nor will it attempt to:
3.5.1. Copy, reproduce, modify, damage, disassemble, decompile, reverse engineer, or create derivative works of the Solution (including the Platform or any portion thereof) or content provided there through, or any portion thereof;
3.5.2. Breach, disable, tamper with, develop or use (or attempt) any workaround for, or otherwise damage the Solution (including the Platform or any portion thereof) or content provided there through, or any security measure thereof;
3.5.3. Interfere or attempt to interfere (whether through a device, software, mechanism, routine, or otherwise) with the proper working of the Solution (including the Platform or any portion thereof) or content provided there through;
3.5.4. Set, read, write, modify, or delete any cookie on the other party or any third party’s owned or operated domain;
3.5.5. Transfer personally identifiable information to any other party, or otherwise associate a cookie, web beacon, or other mechanism with personally identifiable information, unless mutually agreed to in writing;
3.5.6. Use the Solution, unless mutually agreed to in writing, to select or target (a) sites directed at children under the age of 18 years, or (b) based on information generally accepted as “sensitive” pursuant to Internet advertising industry guidelines (e.g., the self-regulatory principles/code of conduct of the Network Advertising Initiative) or Applicable Law, rule, or regulation (the Company may remove or deactivate any Media or Ads from the Solution);
3.5.7. Make available any content or materials of abusive, pornographic, vulgar, harassing, obscene, invasive, or otherwise offensive nature, or, pursuant to Applicable Law, illegal content of any kind in connection with the Solution (including using the Solution); or
3.5.8. Alter or tamper with any information or materials on or associated with any Service or the Platform or any content provided there through.
3.6. Privacy
3.6.1. Publisher agrees: (i) to comply with and use the Solution in accordance with all Applicable Laws; and (ii) to obtain End Users' freely given, specific, affirmative, informed, and unambiguous consent in accordance with Applicable Law to the Company’s PP and Cookie Policy, including with respect to placing or accessing any of the Company’s cookies or any other unique identifiers on the End Users’ device(s) and browser(s), the collection of personal data, and to the advertising or content being served; (iii) to conspicuously display, maintain, and make readily accessible to End Users a privacy policy that complies with Applicable Law and provides information on Publisher’s data collection practices, including information on the kind of data collected, the purposes for which the data will be processed, any disclosures that will be made of the data, and the use of any tracking mechanism, and information on how to disable those tracking mechanisms; (iv) that use of the Solution shall be governed by and subject to the PP and comply with Applicable Law; and (v) to provide End Users with the Company’s opt-out for receiving Ads.
3.6.2. Publisher shall ensure that it does not associate the Platform with any Personally Identifiable Information, or set, read, write, modify, or delete any cookies on the Company domain, or use cookies or tracking technologies through the Platform in a manner that could collect or transmit personally identifiable information unless prior to the first occurrence of any such collection or transmission, Publisher: (a) first, fully, accurately, clearly, and conspicuously discloses the type of information collected (described with specificity in the case of personally identifiable information), the method of collection (e.g., by registration, etc.), and the location of (i.e., a link to) the privacy policy that governs the collection, use, and disclosure of the information; and (b) then, obtains the End User’s affirmative consent to such collection and/or transmission (prior to such collection) including according to the PP and the Company’s Cookie Policy.
5. Term and Termination
5.1. Term: This Agreement shall be in full force and effect as of the date of registration of your account (in case of self-service platform registration) until terminated according to the terms provided herein.
5.2. Suspension or Termination by Company: The Company may suspend Publisher’s access to and use of its Platform, including its Solution, and/or at its discretion terminate this Agreement if the Company in its sole reasonable discretion believes that: (a) Publisher is engaging in a prohibited activity, in particular if Publisher violates any Applicable Law, or (b) Publisher’s continued use of the Platform and/or Solution is likely to damage or cause imminent harm to the Platform, the Solution, the Company, or other users of the Solution and/or Platform (such as Advertisers).
5.3. Termination for Convenience: The Company may terminate this Agreement for convenience immediately without any notice to Publisher.
5.4. Effect of Termination: Upon termination:
(i) The license provided by the Company hereunder shall immediately terminate and expire;
(ii) Publisher will immediately (a) cease making any use of the Solutions and remove the Tag from the Media; (b) pay all amounts owed to the Company hereunder;
(iii) Sections 6,7,8, and 9 will survive the termination or expiration of this Agreement.
6. Confidentiality
6.1. Definition: Confidential Information includes, but is not limited to, all information relating to the Solution, the Platform, or the Tag; any information regarding the content, purpose, design, or function of the Solution; any know-how, technical data, or other information disclosed to Publisher; information concerning End Users interacting with the Ads; and information concerning payouts and rates paid to Publisher.
6.2. Exceptions: Confidential Information shall not include any information that either Party can establish by written record: (i) is already public knowledge without breach of confidentiality restriction, (ii) was known to such Party prior to its negotiations with the other Party, or (iii) is hereafter rightfully furnished to a Party by a third party without restrictions on disclosure and without breach of confidentiality restriction.
6.3. Obligations: Each Party agrees to:
(i) Maintain in confidence all Confidential Information disclosed by the other Party;
(ii) Not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement;
(iii) Take all reasonable precautions to protect the confidentiality of such information, employing at least those measures it takes to protect its own confidential information of a similar nature.
7. Indemnification
7.1. Publisher Indemnification: Publisher agrees to indemnify, defend, and hold harmless the Company and its officers, directors, employees, and agents from and against any and all claims, liabilities, damages, losses, and expenses (including reasonable attorneys' fees) arising out of or in any way connected with (a) Publisher’s breach of any representation, warranty, or obligation under this Agreement; (b) any claim that Publisher’s Media infringes, misappropriates, or otherwise violates any third party rights; (c) Publisher’s use of the Solution in violation of Applicable Law; and (d) any third party claims related to Publisher’s Media or content.
7.2. Company Indemnification: The Company agrees to indemnify, defend, and hold harmless Publisher and its officers, directors, employees, and agents from and against any and all claims, liabilities, damages, losses, and expenses (including reasonable attorneys' fees) arising out of or in any way connected with (a) the Company’s breach of any representation, warranty, or obligation under this Agreement; and (b) any claim that the Company’s Platform infringes, misappropriates, or otherwise violates any third party rights.
8. Limitation of Liability
8.1. Exclusion of Damages: In no event shall either Party be liable for any indirect, incidental, special, consequential, or punitive damages, or any loss of profits or revenues, whether incurred directly or indirectly, or any loss of data, use, goodwill, or other intangible losses, resulting from (i) the use of or inability to use the Solution, (ii) any conduct or content of any third party on the Solution, (iii) any content obtained from the Solution, or (iv) unauthorized access, use, or alteration of Publisher’s transmissions or content.
8.2. Cap on Liability: In no event shall either Party’s total liability for all claims relating to the Solution exceed the amounts paid by the Company to Publisher in the twelve months immediately preceding the event giving rise to such claim.
9. Miscellaneous
9.1. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of [State], without regard to its conflict of laws principles.
9.2. Dispute Resolution: Any disputes arising out of or relating to this Agreement shall be resolved through binding arbitration in accordance with the rules of the American Arbitration Association.
9.3. Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
9.4. Entire Agreement: This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
9.5. Amendments: No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties.
9.6. Waiver: No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
9.7. Assignment: Neither Party may assign this Agreement without the prior written consent of the other Party, except to an affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets. Any purported assignment in violation of this section shall be void.
9.8. Notices: All notices required or permitted under this Agreement shall be in writing and shall be deemed received when delivered personally, by email (with confirmation of receipt), by overnight courier upon written verification of receipt, or five days after being sent by certified or registered mail, return receipt requested. Notices to Publisher shall be sent to the contact information provided by Publisher in their account. Notices to the Company shall be sent to [Company's contact information].
6. Confidential Information
6.1. Use and Protection: Each Party (“Receiving Party”) agrees not to use or disclose any Confidential Information received from the other Party (“Disclosing Party”) except as expressly permitted under this Agreement or as authorized in writing by the Disclosing Party. The Receiving Party shall use the same degree of care to protect the Confidential Information of the other Party as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care. Publisher agrees to require every employee or consultant with access to the Solution to execute a confidentiality agreement with terms substantially similar to those in this Section 6, as a condition to such access.
6.2. Legal Disclosures: Nothing in this Section 6 prevents either Party from disclosing Confidential Information of the other as required by law, judicial order, or other legal obligations. The disclosing Party must notify the other Party to allow them to seek a protective order or other relief. If a protective order is not obtained, the disclosing Party shall disclose only the portion of the Confidential Information that its counsel advises is legally required to disclose.
6.3. Return or Destruction of Information: Upon termination, expiration, or earlier upon the Disclosing Party's demand, the Receiving Party shall promptly return all tangible forms of Confidential Information or certify in writing that all such information has been destroyed.
7. Indemnification
7.1. Publisher Indemnification: Publisher shall indemnify, defend, and hold harmless the Company, its affiliates, directors, officers, agents, employees, or successors from any and all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of any third-party claim related to any alleged or actual breach by Publisher of the representations and warranties herein or Publisher’s access to or use of the Solution (a “Claim”). The Company will notify the Publisher of any Claim and may choose to tender the control and defense of such Claim to the Publisher, providing reasonably required information for defense at the Publisher’s expense. If the Company tenders control of the Claim, it may join the defense at Publisher’s expense with counsel of its choice. Any settlement requiring the Company to admit liability, pay money, or take or refrain from any action will require the Company’s prior written consent.
7.2. Company Indemnification: If a third party asserts a claim against Publisher that Publisher’s use of the Solution or any part thereof in accordance with this Agreement violates that third-party’s patent, trade secret, or copyright, or if the Company believes the Solution may violate a right, then the Company will, at its expense: (a) modify the Solution to have at least equal functionality and features, (b) procure the right to continue using the Solution, or (c) terminate Publisher’s right to use the Solution if (a) or (b) are not commercially reasonable. This section contains Publisher’s exclusive remedy and the Company’s sole liability for such claims.
7.3. Disclaimers: The Solution and Services are provided “as is”, “as available”, and without any express or implied warranties, including but not limited to implied warranties of merchantability, noninfringement, or fitness for a particular purpose. The Company does not warrant that the Solution, Ads, or Services will operate uninterrupted or error-free or that defects will be corrected. The Company is not responsible for software or content served through or linked from the Solution, Ads, or Services. This disclaimer is a fundamental part of this Agreement, and the Company would not enter into this Agreement absent such disclaimer.
7.4. Content Responsibility: The Company does not monitor content provided through Media or the Solution and is not liable for any damages or loss arising from such content. Publisher is solely responsible for all content provided and in no event shall the Company be liable for any damages arising from such content.
8. Limitation of Liability
8.1. Exclusion of Certain Damages: Neither Party shall be liable for any incidental, indirect, special, exemplary, or consequential damages, including loss of profits or business interruption, even if advised of the possibility of such damages. Publisher’s total aggregate liability under this Agreement is limited to the lower of (i) US$10,000 or (ii) the amount received by the Company under this Agreement during the 30-day period immediately preceding the claim date. This limit applies regardless of the number of claims.
8.2. Time to Bring Action: No action arising under or relating to this Agreement may be brought more than six (6) months after the cause of action occurs, and no later than three (3) months after the Agreement's termination, except for non-payment actions by the Publisher. These limitations apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between the Parties.
9. Miscellaneous
9.1. Force Majeure: Except for Publisher’s payment obligations, neither Party shall be liable for failure or delay in performance due to causes beyond reasonable control, including but not limited to electrical outages, internet service provider failures, riots, insurrections, wars, fires, floods, earthquakes, explosions, and other acts of God.
9.2. Entire Agreement: This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements. In case of conflict between this Agreement and any other agreements or communications, the terms of this Agreement shall prevail unless specifically amended in writing and referring to this Agreement by name and date.
9.3. Assignment: Publisher may not assign this Agreement without prior written consent from the Company. Any unauthorized assignment shall be void. This Agreement does not grant any rights or remedies to any third party other than the Parties hereto. This Agreement shall be governed by Israeli law, and the courts in Tel Aviv shall have sole jurisdiction over any disputes.
9.4. Counterparts: This Agreement may be executed in counterparts, each of which shall be an original, forming a single agreement. If any provision is found invalid or unenforceable, the remaining provisions shall remain in effect. Publisher agrees that the Company may amend this Agreement or provide guidelines that will become binding within 48 hours of being sent to the Publisher.
9.5. Corporate Entities: Services are designated for corporate entities, not individuals. By agreeing to these terms on behalf of a corporate entity, you represent and warrant that you are authorized to act on behalf of that entity.
Exhibit 3.4 Guidelines
1. Unauthorized Use: The Publisher may not use the Solution or Ads in any application downloaded to users' desktops without their permission.
2. Software Restrictions: The Publisher may not use the Solution or Ads through any software that without End User’s explicit authorization:
- Takes control of the End User’s computer to send unsolicited information,
- Diverts or redirects the End User’s browser,
- Modifies computer settings for internet access providers, search providers, bookmarks, security settings, or web page display,
- Renders security settings, security software, or anti-spyware programs inoperable,
- Induces or deceives a user to provide Personally Identifiable Information,
- Cannot be uninstalled or removed by standard practices.
3. Prohibited Content: The Publisher may not use the Solution or Ads in any Media containing content explicitly related to child pornography or otherwise in violation of Applicable Law.
4. Spyware/Malware: If the Company believes Publisher is serving spyware or malware content, the Company may disclose Publisher details to third parties.
5. Violations and Penalties: Each violation of these Guidelines results in a $1,000 non-refundable fine added to the Publisher’s next monthly invoice, and the Company reserves the right to take further actions, including terminating the Agreement or other legal remedies.
Data Protection
6.1. Definitions and Interpretation:
- "Affiliate(s)": Any entity controlled by, controlling, or under common control with a Party.
- "Data Subject": The individual to whom Personal Data relates.
- "Data Protection Laws": Includes ePrivacy Directive 2002/58/EC, GDPR, and other related laws.
- "End User Personal Data": Information about an End User collected directly via the Ads.
- "Publisher Personal Data": Personal data provided by the Publisher, such as employee names and email addresses.
- "Personal Data Breach": A breach leading to unauthorized access or disclosure of Personal Data.
- "Sub-processor": Sub-contractors processing Personal Data on behalf of the Company.
6.2. Nature and Scope of Processing: The Company processes Personal Data to provide content to End Users and improve services. Publisher processes Personal Data as necessary to use the Company’s services.
6.3. Role of Parties: Both Parties are independent controllers of Personal Data.
6.4. Compliance: Each Party is responsible for compliance with Data Protection Laws applicable to its role as an independent controller.
6.5. Lawful Basis:
- Publisher warrants obtaining End User consent for processing Personal Data.
- The Company's lawful basis for processing Publisher Personal Data is contractual.
6.6. Data Subject Rights: Publisher must inform the Company of Data Subject requests and assist in fulfilling such requests.
6.7. Transparency: Publisher must display appropriate privacy notices to Data Subjects and not obtain Personal Data from third parties.
6.8. Personnel: Publisher’s personnel processing Personal Data must be informed, trained, and bound by confidentiality.
6.9. Sub-processors: Publisher requires the Company's consent to use Sub-processors. The Company may use Sub-processors under similar data protection obligations.
6.10. Sharing Personal Data: Publisher will not share Personal Data with the Company that directly identifies Data Subjects or contains Special Categories of Personal Data.
6.11. Data Security: Publisher must maintain measures to protect Personal Data and notify the Company of any Personal Data Breaches.
6.12. Data Retention: The Company will delete Publisher Personal Data upon request and retain End User Personal Data as per its Privacy Policy.
6.13. Compliance Verification: Publisher shall provide information to demonstrate compliance and notify the Company of any legal complaints or allegations.
6.14. International Transfers: The Company may transfer Personal Data outside the EEA, including through Sub-processors.