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) (“Publisher”) and Tagzzoo LTD Ltd. (“Company”). Each Company and Publisher shall be referred to as a “Party” and jointly as the “Parties”.
1. Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings ascribed to them below.
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 interstitial and text links that are generally used as an advertisements
Company’s technology, allowing contact between Advertisers and Publishers using Company’s services, enabling the presentation of Ads on Publisher’s defined below Media
1.3 .“Applicable Law”
applicable directives, laws, regulations and industry standards (“Laws”) (including the Laws which apply to the End User (at its 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)
1.4. “End User”
individual human end users of the Media.
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 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 confidentiality restriction, or (2) was known to such Party prior to its negotiations with the other Party, or (3) that is hereafter rightfully furnished to a Party by a third party without restrictions on disclosure and without breach of confidentiality restriction.
Code that request an Ad from the Platform (which often can be referred to as JS Tag, Ad Tag or an SDK in mobile applications), which is provided by Company for implementation on Publisher Media
Internet assets in Publisher’s Media in which Ads are displayed, sold by Publisher to Advertisefrs using the Platform.
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.
The Platform and its components including but not limited to the methods, tools and other intellectual property of the Company.
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 part thereof are hereby reserved. Publisher hereby grants to the Company during the Term, a limited, fully revocable, non-exclusive, non-transferable license to integrate in Publisher’s Properties the Company’s Software and to copy, reproduce and distribute the look and feel of the Publisher Properties in any way with solely in order to enable the Actions in connection to the Company’s Software 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 dissemble 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 uses 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
3.3. 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) 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; and (f).
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 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 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, 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.
3.7. Publisher represents and warrants it will not, either by itself or by authorizing or encouraging others to do so, directly or indirectly, act in violation of the foregoing terms. 4. Payment Obligations
4.1. The Company undertakes to pay Publisher within 30 days following the end of any calendar month (Net+30). the Fees generated in the previous month. The Company will pay Publisher the Publisher Earnings generated by the Ads displayed on the Media, less associated System Fees, and adjusted as applicable to account for Reconciliation Adjustments. As used herein, “Reconciliation Adjustments” means monthly adjustments made as applicable in order to reconcile Publisher’s account. Examples of Reconciliation Adjustments include but are not limited to: (a) application of amounts previously withheld by or not collected from Advertiser, (b) reporting and statistical errors, (c) deduction or roll-over of amounts, and (d) carrying over the uncollected balance of System Fees to the following month when Publisher Earnings collected by The Company in a particular month are not sufficient to cover the System Fees due to The Company in such month.
4.2. All numbers with respect to the Ads for the purposes of billing and payment shall be based on the Company’s reporting system. The Company will provide the Publisher with automatic reports. The parties agree that Company’s reports will be deemed as sole and decisive evidence with respect to amounts owed hereunder and shall be binding upon the Publisher. The Company shall have the right to place certain tracking technology in the Ads (such as tracking pixel(s) or any other mechanism(s)) for observing, recording, analyzing and optimizing the performance of the Ads and the Media.
4.3. Publisher Earnings and corresponding System Fees shall be determined based solely on numbers as reported in the Platform. Notwithstanding the above, the Company reserves the right to not distribute Publisher Earnings: (a) when amounts due Publisher equal less than twenty-five dollars ($25) (in which case amounts due will rollover to the next pay period), (b) if Publisher fails to complete any tax or reporting forms reasonably requested by the Company or to provide the Company with accurate tax information, or (c) where Publisher Earnings are generated by any prohibited and/or fraudulent activity.
4.4. Publisher acknowledges and agrees that Advertisers reserve the right to refuse to pay on impressions, clicks or actions determined to be fraudulent, artificially inflated or otherwise invalid, and that Publisher will not be paid if the Company does not receive payment from the applicable Advertiser.
4.5. Without derogating from the above said, in case Company detects, in its sole discretion, fraudulent activity: (i) Company may suspend and/or block Publisher’s account; and/or (ii) no payment shall be paid for the entire day that such activity was detected in; (iii) if Publisher believes that such activity is not fraudulent activity, publisher must provide the company with sufficient evidence as will be decided by Company.
4.6. Unless otherwise stated, all payments shall be made in U.S. dollars and all amounts referenced herein refer to U.S. dollars.
4.7. All amounts payable hereunder are exclusive of any sales, use and other taxes, tariffs or duties, however designated (“Taxes ”). Publisher is solely responsible for payment of any Taxes applicable amounts paid hereunder.
5. Term and Termination
5.1. This Agreement shall be in full force and effect as of the date of registration of your account (in case self-service platform registration) until terminated according to the terms provided herein.
5.2. 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. The Company may terminate this Agreement for convenience immediately without any notice to Publisher.
5.4. Upon termination (i) the license provided by the Company hereunder shall immediately terminate and expire; 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. CONFIDENTIAL INFORMATION
6.1. Each Party (“Receiving Party”) agrees that it will not use or disclose any Confidential Information received from the other Party (” Disclosing Party”) other than as expressly permitted under this Agreement or as expressly authorized in writing by the disclosing Party. The receiving Party shall use the same degree of care to protect 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 that it will require every employee or consultant who will have access to, use of, or knowledge of the Solution to execute (in advance of and as a condition to such access, use of or knowledge) a confidentiality agreement including terms substantially similar to those contained in this Section 6.
6.2. Nothing in this Section 6 will prevent either Party from disclosing Confidential Information of the other to the extent required by law, judicial order or other legal obligations, provided that in such an event, the Party disclosing such Confidential Information of the other shall notify such Party to allow such Party to seek a protective order or other appropriate relief. If a protective order is not obtained, the Party required to make such disclosure shall disclose only that portion of the Confidential Information which its counsel, in its reasonable judgment, advises is legally required to disclose.
6.3. Upon termination, expiration or earlier upon demand of the Disclosing Party, the Receiving Party shall promptly, return to the Disclosing Party all Confidential Information of such Party which is in tangible form, or certify in writing that all such Confidential Information has been destroyed
7.1. Publisher shall indemnify, defend and hold harmless the Company its affiliates directors, officers, agents, employees or successors from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by the Company arising out of any third party claim related to any alleged or actual breach by Company of the representations and warranties herein and (ii) Company’s access to or use of the Solution (a “Claim”). The Company will promptly notify the Publisher of any Claim and promptly tenders the control and the defense and settlement of any such claim to the Publisher and shall provide the Publisher with all information and cooperation reasonably required Publisher’s expense in defending or settling such claim and EPOM may join in the defense with counsel of its choice at its sole expense.
7.2. If (1) a third party asserts a claim against Publisher asserting that Publisher’s use of a Solution or any part thereof in accordance with this Agreement violates that third-party’s patent, trade secret or copyright, or (2) the Company believes the Solution, or any part thereof may violate a right, then the Company will, at its expense: (a) modify such portion of the Solution or any part thereof provided such modified deliverable has at least equal functionality and features at the deliverable with which it is replaced, or (b) procure the right to continue using the Solution or any part thereof, and if (a) or (b) are not commercially reasonable, terminate Publisher’s right to use the Solution. This section contains Publisher’s exclusive remedies and the Company’s sole liability for any such claims.
7.3. ThE SOLUTION AND SERVICES, IF ANY, ARE PROVIDED “AS IS”, “AS AVAILABLE”, “WITH ALL FLAWS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. THE COMPANY DO NOT WARRANT THAT THE SOLUTION THE ADS OR SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THE COMPANY SHALL NOT BE RESPONSIBLE FOR SOFTWARE OR CONTENT THAT IS SERVED THROUGH OR LINKED FROM THE SOLUTION, THE ADS OR SERVICES. THE PARTIES ACKNOWLEDGE THAT THE FOREGOING DISCLAIMER IS A FUNDAMENTAL PART OF THIS AGREEMENT, AND THE COMPANY WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH DISCLAIMER. The Company shall not be liable for any loss (including but not limited to direct loss of revenue, incurred cost or loss of profits) that may be incurred by Publisher as a result of any failure of the Solution to operate as expected or anticipated, including but not limited to a failure of any operation of the Solution which results in an incorrect operation or failure to operate as intended, any technical default in the Solution or incorrect impression, campaign or publisher targeting.
7.4. The Company does not monitor content provided or made available in or through Media or the Solution, nor does it screen or has any control over such content. Publisher shall be solely responsible for all content so provided and in no event shall the Company be liable for any damages or loss whatsoever, whether direct, indirect, general, special, compensatory, punitive, consequential, and/or incidental, arising out of or relating such content or the use of the Media.
8. Limitation of Liability
8.1. In no event shall either party be liable to the other party for any incidental, indirect, special, exemplary, or consequential damages including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, in each case even if such party has been advised of the possibility of such damages. Notwithstanding anything to the contrary, Publisher’s total aggregate liability under this Agreement, if any, to the Company’s or any other person or entity, in connection with any claim relating to this Agreement, including any services provided by or on behalf of company, will be limited to an amount equal 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 date of the claim. The existence of one or more claims will not enlarge this limit. This section shall survive the expiration and/or termination of this Agreement.
8.2. No action arising under or relating to this Agreement, regardless of its form, may be brought by either party more than six (6) months after the cause of action has occurred and in any event no later than three (3) months after the termination of this Agreement, except for an action for non-payment brought by the Publisher. The foregoing limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between the parties.
9.1. Except for Publisher’s payment obligations under this Agreement, neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
9.2. This Agreement contains the entire agreement between the parties and supersedes all other agreements between the parties. Without derogating from the generality of the foregoing, in the event that the terms of this Agreement are in conflict to the terms of any other agreement, provision, quote, order, acknowledgment, or other communications between the parties, the terms provided herein shall prevail over such conflicting terms (even if the conflicting terms are incorporated in a written instrument signed by the parties herein after the execution of this Agreement unless the Publisher specifically referred in such instrument to the name and date of this Agreement and to the amendment of its terms and conditions).
9.3. Publisher may not assign this agreement without the prior written consent of the Publisher, and any assignments in violation of the foregoing shall be void. Nothing in this Agreement is intended or will be construed to give any person, other than the parties hereto, any legal or equitable right, remedy or claim under or in respect of this Agreement or any other provision contained herein. This Agreement shall be interpreted in accordance with Israeli law and the courts in Tel Aviv shall have sole jurisdiction over any disputes hereunder.
9.4. This Agreement may be executed in two counterparts, each of which shall constitute an original and the two together shall constitute a single agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement. The parties agree that Publisher may amend this Agreement / provide Publisher with certain guidelines and that such amendments/guidelines shall be binding upon the Publisher within 48 hours of the date such amendments/guidelines has been sent to the Publisher.
Exhibit 3.4 Guidelines
1. The Publisher may not use the Solution or the Ads in any application that has been downloaded to user’s desktops without their permission.
2. The Publisher may not use Solution or the Ads through any software, which does any of the following without End User’s explicit authorization: takes control of the End User’s computer to send unsolicited information, diverts or redirects End User’s browser, modifies computer settings for default 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 and normal practices.
3. The Publisher may not use the Solution or the Ads in any Media that contains content explicitly related to child pornography or is otherwise in violation of Applicable Law.
4. If the Company believes that the Publisher is serving content that improperly contains spyware or malware, the Company may at its sole discretion, reply to third party inquiries and disclose Publisher name and contact details to third party.
5. Any one of the preceding instances that occurs through Publisher’s Media will count as a single violation of these Guidelines. Each instance will result in a $1,000 non-refundable fine added to Publisher next monthly invoice and the Company will reserve the right to take additional actions available to it such as terminating the agreement or other available remedies and actions according to Applicable Law.