Please take the time to read and review our terms of service (the “Terms” or the “Agreement”). The parties to this agreement hereinafter are Zoomd Ltd. (“Zoomd”) and you the Advertiser (“Advertiser” or “You”). Zoomd facilitates “Self-serve Performance Marketing Service” (as defined hereinafter) by providing self-serve marketing services via the “Internet” or (Mobile Internet). This Agreement shall govern participation in the Zoomd Service (the “Service” or “Marketing Service”). Taking any step to order, request Service or otherwise use the Service constitutes Advertiser assent to and acceptance of this Agreement. Written approval is not a prerequisite to the validity or enforceability of this Agreement and no solicitation of any such written approval by or on behalf of Advertiser shall be construed as an inference to the contrary.
1. DEFINITIONS
a. “Campaign” – the advertisement campaign to be operated by the Advertiser through the Service.
b. “Creative” – any image, text, programming code, graphic content, or any combination thereof that makes up an advertisement.
c. “Late Installations” – any installations performed following the lapse of the campaign, while the clicks thereto were communicated during the campaign period.
d. “Fraud” – any action that intentionally attempts to create sales, leads, or click-through(s) using robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of creating commissions, which is evidenced by a document provided by the Advertiser to Zoomd detailing all of the following: (i) User IP per each suspected fraudulent conversion; (ii) the reason for suspected fraud per conversion; and (iii) full lead/sale details of all the fields that were completed and provided to the Advertiser in connection with suspected fraudulent conversion provided in an unlocked excel worksheet. The Advertiser is obliged to submit a fraud notice per each suspected fraudulent conversion, within not more than three days from the end of each month in which the alleged frauds were committed. You hereby agree that any failure to submit a fraud notice within the aforesaid period will automatically waive the right to make such notice, and will serve as an approval of the numbers under the Service. In any event, Zoomd will not be required to accept any fraud claims presented to it unless it receives all the required evidence to satisfactory determine such actions constitute “Fraud” as defined herein.
e. “Publisher” – an individual or entity that has accepted, expressly or implied, to the terms and conditions of these T&C and allows its Website, mobile application, pop-up links, SEM links, SEO links, Email links and other traffic sources to include banners and/or other acceptable forms or links to permit traffic and or results between the Publisher and those programs offered by the Service.
f. “Results” – Legitimate views, impressions and/or clicks including traffic that are generated by a third party on a Publisher’s Website and or network so that such third party may view an Advertiser’s ad creative or linked to the Advertiser’s site or otherwise considered a purchase of the Advertiser’s products or services.
g. “Self-serve Performance Marketing Service” – is where a person, entity, publisher or its agent, operating Website(s), Mobile Application and/or other promotional methods to drive visitors to conduct actions that was defined and ordered by the advertisers. For fulfilling the actions according to the definitions and by the limitations of the advertisers the publishers are entitled for payouts that were defined and agreed upon with the advertisers.
2. REGISTRATION, PASSWORD AND SECURITY
a. Whenever You provide Zoomd with information on Zoomd’s site, You agree to: (i) provide true, accurate, current and complete information and (ii) maintain and promptly update such information to keep it true, accurate, current and complete. If You provide any information that is, or Zoomd has reasonable grounds to suspect that the information is, untrue, inaccurate, not current or incomplete, Zoomd may without notice suspend or terminate your access to the Service and refuse any and all current or future use of the Service.
b. If any portion of Zoomd’s site requires You to register or open an account You may also be asked to choose a password and a user name. Please select a password that would not be obvious to someone trying to guess your password, and change it regularly as an added precaution. You are responsible for maintaining the confidentiality of the password and account, and You are fully responsible for all activities that occur under your password or account identification. You agree to immediately notify Zoomd of any unauthorized use of your password or account or any other breach of security. Without limiting any rights which Zoomd may otherwise have, Zoomd reserves the right to take any and all action, as it deems necessary or reasonable, to ensure the security of its site and your account, including without limitation terminating your account, changing your password, or requesting additional information to authorize transactions on your account. Notwithstanding the above, Zoomd may rely on the authority of anyone accessing your account or using your password and in no event and under no circumstances shall Zoomd be held liable to You for any liabilities or damages resulting from or arising out of (i) any action or inaction of Zoomd under this provision, (ii) any compromise of the confidentiality of your account or password and (iii) any unauthorized access to your account or use of your password. You may not use anyone else’s account at any time, without the permission of the account holder.
c. The security of your personally identifying information is important to us. While there is no such thing as “perfect security” on the Internet, Zoomd will take reasonable steps to help ensure the safety of your personally identifying information. However, You understand and agree that such steps do not guarantee that use of Zoomd’s site is invulnerable to all security breaches, and that Zoomd makes no warranty, guarantee, or representation that use of any of Zoomd’s site is protected from viruses, security threats or other vulnerabilities.
3. USAGE POLICY
a. Zoomd reserves the right, under its sole discretion, to (i) close, suspend or withhold approval of Advertiser’s Campaign or to refuse service to any new or existing Advertiser; (ii) close, suspend or withhold Advertiser’s account under the Service; and (iii) from time to time, but subject to providing reasonable notice to Advertisers, suspend and hold the Service for the minimum time required in order to have proper maintenance work done to the Service.
b. Representations and Warranties – Advertiser represents and warrants that: (1) it is the owner or is licensed to use the entire contents and subject matter contained in the Website, mobile application and/or any Creative; (2) the Website, Mobile Application and/or any Creative is free of any virus or other any other device that could impair or injure any person, or entity, computer equipment or software; (3) the Website, Mobile Application and/or any Creative does not violate any law or regulation governing false or deceptive advertising, sweepstakes, gambling, or trade disparagement; (4) the Website, Mobile Application and/or any Creative does not contain any misrepresentations or content that is defamatory or violates any rights of privacy or publicity; (5) the Website, Mobile Application and/or any Creative does not contain any child pornography or link to such content; (6) the Website, Mobile Application does not contain any linking to software piracy; (7) the Website, Mobile Application and/or any Creative does not contain or link to any form of illegal activity (i.e., how to build a bomb, hacking, etc.); (8) the Website, Mobile Application and/or any Creative does not contain any gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm; (9) the Website, mobile application and/or any Creative does not contain any content promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.); (10) the Website, mobile application and/or any Creative does not participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam); (11) Advertiser will comply with all laws and regulations that may apply to Internet advertising, including, but not limited to the Children’s Online Privacy Protection Act, the Can-Spam Act, the Federal Trade Commission Act and the Digital Millennium Copyright Act, and (12) the Website does not and will not infringe any copyright, trademark, patent or other proprietary right. Advertiser grants Zoomd and the publisher the right and license to transmit the Creative to the publisher’s Website, mobile application and opt-in or opt-out emails, or in any other form of electronic advertising on the Internet (Mobile Internet). Advertiser shall provide Zoomd with a written notice of 2 business days in advance of any change in the terms of any Advertising Campaign, and such change shall not be retroactive. Notices should be sent to the Zoomd account representative. In any event of breach by the Advertiser of any of the representations and warranties above, Zoomd shall have the right, under its sole discretion, to withhold funds or impose a fine on the Advertiser.
c. Campaign Details – The advertiser will sign and place his details of the Mobile Advertising Campaign and any Campaigns within its “Campaign Set-up form”. This form will be completed prior to Your Campaign being activated. Advertisers are responsible for maintaining the correct contact and payment information associated with their account.
d. Payout Rates- the payouts that were agreed under the Services.
e. Content – Zoomd does not accept Websites/Mobile Application that advertise, produce, provide or link to adult content, promote or facilitate illegal activities, including but not limited to, pirating names used to access the Website and hacking. Zoomd does not accept Websites that are under construction, personal home pages, or do not own the domain.
f. Proprietary Rights and Licenses – You grant to Zoomd a revocable, non-transferable, royalty free, international license to display on and distribute from Zoomd’s Websites/Mobile Application Links to Your Websites/Mobile Application for Your Campaigns(s), and all trademarks, service marks, tradenames, and/or copyrighted material (“Content”) that You provide to Zoomd through the Zoomd’s Service for the limited purposes of promoting Your Campaign to Publishers and potential Publishers. The rights to display and Link to Your Websites/Mobile Application are sub-licensable by Zoomd Service to our Publishers. Zoomd Service shall not otherwise copy or modify any icons, buttons, banners, graphics files, or Content that You have made available through this Agreement pursuant to the foregoing license, except as necessary to conform Your Links to a Zoomd compatible format.
g. Approved MMP – You hereby acknowledge that integrated third party tracking platforms are required in order to track and optimize installs or performance campaigns under the Service. Zoomd will accept only direct 3rd party tracking MMP (Mobile Measurement Partner) links to run app install campaigns.
h. Social Networks – You hereby agree and authorize Zoomd to run the applicable campaigns and Services on the applicable social networks (such as: Google UAC, Snapchat, Tiktok and any additional social networks added in the future) on your behalf. You acknowledge that under certain circumstances there may be discrepancies between the numbers of the social networks and the MMP, hence, in any event of such discrepancy you acknowledge and agree that the numbers of the social network shall prevail, and You shall be charged according to them
i. Late Installations – In the event of any Late Installations with respect to any applicable app install campaign, you agree that Zoomd will charge Your account for such Late Installations upon the occurrence of the installation. In the event that at the time of the Late Installations Your account will not hold sufficient funds, Zoomd reserves the right to charge for the missing amounts due to it for the Late Installations from any additional funds you will add later on to Your account.
You agree that Your use of any Zoomd Service site (such as https://wordpressmu-935437-3249329.cloudwaysapps.com), and Your use of any Zoomd logos, trademarks or Links is subject to the license and terms of use.
You represent and warrant that You have all appropriate authority and rights to use all trademarks, logos, service marks, trade names, and/or content displayed on Your Websites/Mobile Application or otherwise utilized hereunder.
4. PRIVACY POLICY
Zoomd will process personal information in accordance with its privacy policy available at https://zoomd.com/privacy-policy/ when processing personal information (the “Privacy Policy”).
5. PAYMENT POLICY
a. Campaign Results – Advertiser DCPC (Dynamic Cost Per Click), CPA (Cost Per Acquisition), CPI (Cost Per Install), CPL (Cost Per Lead) and CPS (Cost Per Sale) campaigns can be set. Additionally, by the end of each applicable month and in accordance with the updated data provided by Zoomd’s suppliers, Zoomd reserves the right to amend and update the Results accordingly.
b. Activity approval: Advertiser is hereby to confirm that Zoomd Service reports and the stats provided are the sole source from which Zoomd Service will obtain the numbers to charge the Advertiser for a given day/week/month and Advertiser irrevocably waives any claim with respect to such numbers.
c. In no event will the Advertisers be entitled to any refund, chargeback, deduction or any similar right with respect to payments made to Zoomd regarding the use of the Service.
d. Tax – All payments due to Zoomd under these Terms will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT, if applicable) (collectively, the “Taxes”) and each of the parties hereto will be liable for its own Taxes, as applicable.
e. Transfer Fees – each of the parties will be responsible for any transfer fees (including any international transfer fees) applicable to it, regardless of servicing or payment platform.
6. LIABILITY POLICY
a. Indemnification – Advertiser is solely responsible for any legal liability arising out of or relating to (i) the content and other material set forth on the Advertiser Websites and/or (ii) any content or material to which users can link through the Advertiser Websites (other than through an advertisement supplied by Zoomd Service). Advertiser hereby agrees to indemnify, defend and hold harmless Zoomd and its officers, directors, agents, publishers and employees from and against all claims, actions, 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 claims, suits or proceedings (a) for libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, Fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Advertiser Websites (except for advertisements supplied by Zoomd Service); (b) arising out of any material breach by Advertiser of any duty, representation or warranty under any agreement with Zoomd Service; or (c) relating to a contaminated file, worm, virus, spyware, malware, adware, or Trojan horse originating from the Advertiser Websites (other than through an advertisement supplied by Zoomd).
b. Warranty Disclaimer – TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ZOOMD DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) ADVERTISERABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT ZOOMD SERVICE SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER’S INFORMATION OR WEBSITE. ALL ‘INFORMATION’ AND ‘COMPUTER PROGRAMS’ PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. ZOOMD, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER’S WEBSITE(S), AND/OR THE CONTENT OF AN ADVERTISER’S WEBSITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE MARKETING SERVICE.
c. Limitation of Liability – TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAWS, ZOOMD AND ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, OR EMPLOYEES, SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, LOST REVENUES, LOST DATA, OR LOSS OF GOODWILL) INCURRED IN CONNECTION WITH THESE TERMS UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, CONTRACT OR TORT, WHETHER OR NOT ZOOMD WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND IN NO EVENT SHALL ZOOMD’S AGGREGATE LIABILITY TO YOU FOR ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE CONSIDERATION PAID TO ZOOMD IN CONNECTION WITH THE SERVICES DURING THE THREE (3) MONTHS DIRECTLY PRECEDING ANY CLAIM.
7. TERM AND TERMINATION
a. Term: This Agreement shall commence upon the date of Your click-through acceptance, and shall be in effect on a per Campaign basis for twelve (12) months thereafter (the “Initial Term“).
b. Termination for Convenience: Either party may terminate this Agreement for any reason upon 2 business days prior written notice to the other party.
c. Termination for Cause – Either party may terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 2 days of receipt of written notice from the non-breaching party of the existence and nature of the breach. Notwithstanding the preceding, Zoomd may terminate this Agreement immediately upon notice should You engage in illegal activity of any type.
d. Renewal Terms – Upon expiration of the Initial Term, this Agreement shall automatically renew for additional one year terms although either party may terminate this Agreement without cause. Notwithstanding the foregoing the parties may conduct periodical review meetings and amend the commercial terms of this Agreement in accordance with the results of such meetings. Each such modification will be made and writing and deemed to be an integral part of this Agreement.
e. Effect of Termination – Upon termination of this Agreement, any sums properly due from one party to the other will become payable immediately and You shall immediately cease using the Services Upon reconciliation of Your Campaign Account, Zoomd shall pay You any outstanding credit balance.
Upon termination of this Agreement, any license or sublicense granted to You or by You under this Agreement will terminate, and the licensee/sub-licensee shall immediately destroy or delete all physical and electronic copies of the Confidential Information, and cause all Links to Zoomd to be removed. Zoomd shall (a) inform Your Publishers that Your Program(s) has ended (if terminated) or has been temporarily discontinued (in the case of temporary deactivation), (b) stop distributing Links to Your Website, and (c) request (or suggest, in circumstances of deactivation) that all Links placed by Your Publishers to Your Website be removed from such Publishers’ Websites and/or subscription e-mail.
8. GENERAL
a. Applicability – This Agreement, including all attachments contained herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and existing understandings or agreements, whether made in writing or orally, in regard to the said subject matter. Applicable sections remain in force after the expiration or early termination of this Agreement. The relationships between the parties to this Agreement shall be solely that of independent contractors. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither Zoomd nor Advertiser shall present itself as the agent of the other, other than as specified in this Agreement. Neither party shall be liable to the other for delays or failures in performance for reasons beyond the reasonable control of that party, including, but not limited to, force major , labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement shall be effective only if made in writing and signed by the parties. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement. In addition to terms that are negotiated and documented separately from this Agreement, terms that are automatically generated through the interactive use of the Zoomd website are explicitly bound by this Agreement.
b. Confidentiality – You or Zoomd may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party (“Confidential Information”). The receiving party agrees to make commercially reasonable efforts, but in no case less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include information that is or becomes part of the public domain through no act or omission of the receiving party, or is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement.
c. Public Release – Zoomd and Advertiser shall have the right to reference each other and refer to each other’s work for, and relationship with, for marketing and promotional purposes.
d. Modifications – Zoomd reserves the right to change any conditions of this contract at any time. Members are responsible for complying with any changes to the Zoomd Advertiser Agreement within 10 business days from the date of change. Zoomd will post any changes to this Agreement on Zoomd website or/and will advise the Advertiser by e-mail.
e. Privacy – Advertiser shall support Zoomd’s commitment to protect the privacy of the online community.
f. Solicitation of Publishers – During the Term of this Agreement, any renewal terms, and for three (3) months hereafter, You shall not knowingly solicit directly or through third party any Publisher that is obtained through the Services provided by Zoomd under this Agreement, and You shall not encourage any such Publisher to transfer. In the event you do directly solicit or cause to be transferred any Publisher, You shall pay Zoomd what Zoomd would have otherwise earned if You had not violated this provision.
9. GOVERNING LAW
If any dispute arising in connection with the performance of this Agreement shall not be amicably resolved, such dispute shall be solely and finally settled as follows:
These T&C shall be interpreted according to the laws of the State of Israel without regard to or application of conflict-of-law rules or principles. Any dispute relating to or arising from this T&C shall be settled in the sole jurisdiction of the applicable courts of Tel Aviv, Israel.
Both parties must send all notices relating to this Agreement in writing via overnight mail or facsimile: (a) to Zoomd: Akerstein A Building, 9 Hamenofim St., Hertzelyia Pituah, Israel, telephone +972.7222.00555, facsimile: +972.7222.00550, e-mail: contactus@Zoomd.com and, (b) for Advertiser, at the address or facsimile number listed on Your Account. Notices shall be effective upon a facsimile confirmation, the notified party’s actual receipt (or refusal to accept to receipt, if applicable), or five (5) days after the date of mailing. (f) You acknowledge and accept that this Agreement, as may be amended from time to time, will govern Your participation in any and all services which may be provided to You by Zoomd. Unless expressly agreed otherwise in writing, the terms and conditions set forth herein shall automatically apply without any additional acknowledgment or acceptance procedures by You to all services provided to You by Zoomd, including without limitation all future insertion orders or other service agreements entered between you and Zoomd in connection with additional campaigns and/or modifications to existing campaigns, including rate updates and payment terms modifications, on any media types in any and all jurisdictions.
