Please take the time to read and review our terms of service. The parties to this agreement hereinafter are Zoomd Service (“Zoomd“) and you the Advertiser (“Advertiser” or “You“). Zoomd facilitates “Performance Marketing Programs” (as defined hereinafter) by providing 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.
- “Performance Marketing Service” – is where a person, entity, publisher or its agent, operating Web (WAP) site(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.
- “Publisher” – an individual or entity that has accepted, expressly or implied, to the terms and conditions of this User Agreement and allows its web site, 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 Zoomd Service.
- “Results” – Legitimate views, impressions and/or clicks including traffic that are generated by a third party on a Publisher’s web site 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.
- “Creative” – any image, text, programming code, graphic content, or any combination thereof that makes up an advertisement. e) Advertiser Program – an advertising program.
- “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. Any fraud claims submitted after the aforesaid period will automatically expire and be deemed void. 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.
- “Tracking Code” (or “pixel” or “image pixel” or “server to server pixel”), – Zoomd code for tracking information.
- USAGE POLICY
- Zoomd – reserves the right to withhold approval of Advertiser’s Campaign or to refuse service to any new or existing Advertiser, at its sole discretion, with or without cause.
- 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/Wapsite, mobile application and/or any Creative; (2) the Website/Wapsite, 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/Wapsite, 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/Wapsite, 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/Wapsite, Mobile Application and/or any Creative does not contain any child pornography or link to such content; (6) the Website/Wapsite, Mobile Application does not contain any linking to software piracy; (7) the Website/Wapsite, 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/Wapsite, 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/Wapsite, 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/Wapsite, 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/Wapsite 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/Wapsite, 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.
- Campaign Details – The advertiser will sign and place his details of the Mobile Advertising Campaign and any Campaigns within its “Campaign Set-up form” (or IO). 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.
- Payout Rates- the payouts that were agreed upon in the IO above or via e-mail. Any change in the rates of a campaign should be considered as closing a campaign and launching a new one, meaning at least 2 business days’ notice is needed.
- Content – Zoomd does not accept Websites/Wapsites/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/wapsite and hacking. Zoomd does not accept Websites/Wapsites that are under construction, personal home pages, or do not own the domain.
- 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/Wapsites/Mobile Application Links to Your Websites/Wapsites/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/Wapsites/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.
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/Wapsites/Mobile Application or otherwise utilized hereunder.
- Zoomd Tracking Code Technology
Zoomd Service Tracking Code Technology (the “pixel“) – Zoomd pixel purpose is to enable tracking of the different performance models such as DCPC, CPC, DCPM, CPM, CPL, CPI and CPA. Zoomd pixel will not be modified from original format without prior written consent from Zoomd.
- Diversity of Tracking Technology – Zoomd Service Advertisers are provided with integration alternatives such as server to server tracking, SDK and image pixel integration with standard pixel tracking technology.
- Advertisers may utilize the “server side integration” method of tracking in addition to embedding a (for auditing & optimization purposes) that automates the reporting of commissions to Zoomd. “Server to server integration” means that you are recording conversions on your servers and then reporting the data to Zoomd. If you are approved for utilize the Server side integration method, you agree to generate an HTTP / HTTPS request to Zoomd in accordance with the technical details provided and transfer requirements by Zoomd Service. The request shall be generated no later than an hour following the conversion.
- Alternatively, at Zoomd’s sole discretion, Advertiser may utilize the “scheduled data transfer” method of tracking in addition to embedding a script (or “image“) pixel (for auditing purposes) that automates the reporting of Transactions to Zoomd. “Manual Data Transfer” means that You are recording Transactions on Your servers and then reporting the Transaction data to Zoomd. If You are approved for and utilize the Manual Data Transfer method, You agree to make a daily report of data Transactions to Zoomd in accordance with the formatting, security, and transfer requirements as specified by Zoomd. In no event shall data be transferred later than 3 business days after the transaction. Zoomd may, at its discretion, require You to utilize pixel tracking. Transactions reported through Manual Data Transfer shall be subject to the Chargeback procedures specified below.
- Ad Serving; Tracking Code Maintenance – You agree to comply with Zoomd’s tracking code integration and maintenance requirements as notified to You by Zoomd Service from time to time. Your Links and all advertisements contained in Your Links (“Ad Content“) must be in a Service compatible format, as such format may be established by Zoomd from time to time. If You have any non-standard Zoomd should approve the adjusted solution in writing.
- If the tracking code is not recording tracking data properly on the Zoomd and You are receiving Visitor traffic but Transactions are not being recorded, or if You are using an alternative tracking method to pixel image tracking or app install tracking and You fail to timely comply with Your reporting obligations, Zoomd shall calculate Payouts, and debit Your Account for such Payouts (“Estimated Payouts“) based upon an historical analysis of Your Account as applied to an historical analysis of Your Publishers’ promotion of You. If there is not enough performance data for Your Account to make such analyses, Zoomd shall calculate Estimated Payouts based upon a performance average across the Campaign for all Advertisers for the period under review. The calculation in both cases will include the amount of traffic (impressions & clicks) that were sent to the Advertiser.
- Collection and Use of Transaction Data – Zoomd reserves the right to be able to utilize aggregate transaction data collected through the Campaign Service, which may include information about Your aggregate performance statistics, to analyze Service trends, monitor campaign efficiencies, maintain the integrity of the tracking code, promote Zoomd Service capabilities and efficiencies, and promote Your Campaign capabilities and efficiencies to Publishers.
- PAYMENT POLICY
- Campaign Results Approvals – 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. Advertiser acknowledges that Results must be validated within four teen days from the end of every month via e-mail. If the Results are not validated – Zoomd will automatically validate the results according to Zoomd’s recorded results on the fifthteenth day from the end of the applicable month and Advertiser irrevocably waives any claim with respect to such automatic validation.
- Activity approval: Advertiser is hereby to confirm that Zoomd Service reports and the stats provided are the sole source from which Zoomd Service will take the numbers to charge the advertiser for a given day/week/month.
- LIABILITY POLICY
- 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/Wapsites and/or (ii) any content or material to which users can link through the Advertiser Websites/Wapsites (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/Wapsites (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/Wapsites (other than through an advertisement supplied by Zoomd).
- Damages – In no event shall Zoomd officers, directors, agents, publishers and employees be liable for special, indirect, incidental, or consequential damages, including, but not limited to, loss of data, loss of use, or loss of profits arising there under or from the provision of services.
- 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 WEB SITE. 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 WEB/WAP SITE(S), AND/OR THE CONTENT OF AN ADVERTISER’S WEB/WAP SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE MARKETING SERVICE.
- Limitation of Liability – Neither Zoomd nor its users will be subject to any liability whatsoever for (a) any failure to provide reference or access to all or any part of the Website/Wapsite due to systems failures or other technological failures of Zoomd Service or of the Internet; (b) delays in delivery and/or non-delivery of Creative, including, without limitation, difficulties with a customer or Creative, difficulties with a third-party server, or electronic malfunction; and (c) errors in content or omissions in any Creative. Advertisers are responsible for maintaining in all respects the availability of their WEB/WAP sites and subsequent landing pages.
ANY LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF ALL FEES PAID AND PAYABLE BY YOU TO ZOOMD, AND INTEREST PAID AND PAYABLE BY YOU TO ZOOMD, FOR THE TWELVE MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ZOOMD MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY A PUBLISHER OR ADVERTISER OF THE MARKETING SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
- TERM AND TERMINATION
- 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 from signing the IO (the “Initial Term“), Termination for Convenience: Either party may terminate this Agreement for any reason upon 2 business days (2) prior written notice to the other party.
- 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.
- 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.
- Effect of Termination – Upon termination of this Agreement, You shall pay to Zoomd any outstanding debit balance within ten (10) days of the date of termination. In no event shall outstanding payments be made to Publishers unless and until Zoomd receives payment from You. Upon reconciliation of Your Campaign Account, Zoomd shall pay You any outstanding credit balance after the conclusion of the last Chargeback Period.
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 Web/Wap site, and (c) request (or suggest, in circumstances of deactivation) that all Links placed by Your Publishers to Your Web/Wap site be removed from such Publishers’ Web sites and/or subscription e-mail.
- 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.
- 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.
- 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.
- 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 Web site or/and will advise the Advertiser by e-mail.
- Privacy – Advertiser shall support Zoomd commitment to protect the privacy of the online community
- 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.
- 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:
This Master IO 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 Master IO 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 (IO number). 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.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ZOOMD. BY SIGNING UP TO THE MARKTING SERVICE YOU AGREE TO HAVE AN UNDERSTANDING OF THESE TERMS AND CONDITIONS SET FORTH HEREIN. YOU CAN NOT PARTICIPATE IN THE SERVICE UNLESS YOU HAVE ACCEPTED EACH AND EVERY TERM HEREOF.