GENERAL TERMS AND CONDITIONS FOR PUBLISHERS
These General Terms and Conditions for Publishers (the “Terms”) together with the Insertion Order (“IO”), which are incorporated hereto by reference, are entered into and shall constitute a binding agreement by and between Zoomd Ltd. (DBA Moblin) (“Advertiser”) and the party executing the IO (“you” or the “Publisher”, and together with Advertiser – the “Parties”), as of the Effective Date stated in the IO.
These Terms and the IO shall be collectively referred to as the “Agreement”. In the event of any inconsistency between the provisions of these Terms, and those set forth in the IO, the provisions of the IO shall prevail. These Terms shall govern any and all future mutual agreed campaigns, unless as agreed otherwise by Advertiser and Publisher in writing.
Subject to Publisher’s (including its publishers, vendors, clients, agents or anyone else on its or on their behalf, all hereinafter collectively referred to as “Publisher”) full compliance with the terms of the Agreement, Publisher will promote Advertiser’s products or services by transmitting images, text, videos and/or any other materials provided by the Advertiser (“Creative”), via publisher’s publishers network (“Publishers”) in accordance with the campaign guidelines provided by the Advertiser and agreed to by Publisher (e.g. selected geographic campaign targets, excluded publisher categories etc.) (Collectively – the “Services”).
Zoomd will confirm numbers by the 20th of the month following the month-of-activity, except in 1) situations where the 15th falls on a non-working day, in which case numbers will be confirmed by the following Monday, or in 2) situations where our clients have delayed confirming numbers to us for reasons of review of traffic, national holiday, or otherwise. These numbers may be subject to change, pending future fraud reviews from Zoomd’s clients. In the event that Zoomd’s clients may raise issue with your traffic, after numbers have been confirmed for a given month, we will investigate the matter accordingly, and if needed, will retroactively deduct from future invoices the traffic in question.
Advertiser shall remit payment of Commissions to Publisher (“Payment(s)” or “Commission Fee(s)”) net + 60 days from its receipt of a duly issued tax invoice and after Advertiser receives payment from its applicable customer for the respective campaign. No Payments can be issued without such tax invoice and appropriate tax withholding exemption certificates as applicable. Payments shall be calculated and determined solely based on Advertiser’s data and information with respect to the campaigns, revenues and Commission Fees due to Publisher. Payments below $500 will be remitted by PayPal. Payment above $500 will be remitted by bank wire.
Advertiser reserves the right to suspend payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms of this Agreement by the Publisher. Advertiser reserves the right to deduct from Publisher’s current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and/or cancelled Advertiser purchases. If fraud is discovered within any subset of a traffic channel, the entirety of that traffic channel’s activity may be cancelled, up to and including all of the Publisher’s traffic and/or activity, at the Advertiser’s sole discretion. Advertiser reserves the right to immediately cancel or withhold for later review any Commission Fee based on the foregoing or that is otherwise found to be out of contract. It is the responsibility of the Publisher to monitor the payment, denial and withholding of any Commission Fees; Advertiser is not and shall not be under any circumstances obligated to actively notify Publishers of the status of any Commission Fees.
Any attempt by Publisher to manipulate, falsify or inflate any traffic, activity or Commission Fees or to otherwise intentionally defraud Advertiser or violate any of the terms of this Agreement constitutes immediate grounds for Advertiser to terminate this Agreement without prior notice and will result in forfeiture of any Commission Fees due to Publisher hereunder.
Publisher will only use Advertiser-provided Creative or other advertising materials in the Services contracted by the Advertiser. Publisher will NOT create their own Creative, banners or advertising content in connection with any Advertiser Creative or campaign, unless expressly approved in writing by Advertiser. Editing or modification of any Creative or any part thereof is strictly prohibited.
Publisher will comply with all instructions given by Advertiser (including by email from Advertiser’s to Publisher’s designated Contacts) in connection to the advertisement characteristics such as: forbidden traffic sources (gambling, torrent, vulgar, pornographic etc.), prohibited words and contents, relevant media types (pops, mobile display, email etc.), relevant countries etc.
Unless expressly permitted otherwise, Publisher will not edit or modify the Creative or other advertising materials in any way, including without limitation resizing, altering, and changing the Ad. Publisher will display the Creative in accordance with all applicable specifications, limitation and restrictions. Advertiser may change or revise any Creative or other advertising materials or content at any time, in its sole discretion, and Publisher agrees to use only the most recent version of any Creative or other advertising materials or content that is provided or approved by Advertiser.
Publishers WILL NOT spam or send unsolicited email mentioning or promoting the Advertiser’s Creative or campaigns. Publishers WILL NOT engage in any activity that is unlawful according to the laws of all involved countries (The country of the advertiser, the country of the Publisher, (including all countries in which its network has active operations), & the target country for the campaign).
The number of individual ad units, (impressions, click-throughs, and/or acquisitions) (collectively, “Ad Units”) delivered by Publisher to Advertiser may be measured during an advertising campaign by Advertiser’s service/system (“Ad Server”). As set forth above, Ad Server measurements and numbers shall govern and determine conclusively the number of Ad Units delivered in each month.
- Publisher will deliver Ad Units (Impressions, Clicks, Installs, or Actions specified in the campaign details) on an even basis in accordance with the instructions provided by the Advertiser throughout the contracted campaign period.
- In any month during the Term, the Publisher will be permitted an even distribution variance of up to 10% of the “Contracted Amount,” which shall be the contracted services purchased each month as set forth in the relevant IO. Any even distribution variance will be calculated on a monthly basis, and not an aggregate basis, during the Term. Therefore, the Publisher shall make reasonable effort to deliver Ad Units within the even distribution variance in each month during the Term. This does not apply to CPA, CPL, CPS campaigns. However, budget and volume caps must still be adhered to.
- Advertiser shall not be required to pay for overdelivered Ad Units in excess of the Contracted Amount for any such day or month, or in excess of the total contracted amount for the Term, unless Advertiser has expressly agreed to do so, pursuant to the terms set forth in the IO.
- Advertiser shall not be required to pay for services provided that were not contracted by the Advertiser. Including services delivered with incorrect targeting, (geographic, device, os, time of day, etc.…) unless Advertiser has expressly agreed to do so as stated in the IO.
- Advertiser shall not be required to pay for services provided that are delivered without a click id or traffic channel (subpublisher) tracking data, unless Advertiser has expressly agreed to do so as stated in the IO.
Quality requirement for non-incent campaigns
- Traffic channels delivering a retention rate below 2% on day 1 are not payable.
- Traffic Channels delivering zero in app engagement are not payable.
- Payout and daily cap decreases shall take effect 24 hours from receipt of written notice by either Party.
- Payout and daily cap increases shall take effect at the time specified by the Advertiser.
- Pause requests, whether for the whole of the activity between Advertiser and Publisher, specific to a campaign, or specific to a traffic channel (in regards to a specific campaign or to the whole of the activity) shall take effect 24 hours from receipt of written notice by either Party. Any continued provision of Services or increase in the Services (impressions, clicks, installs, actions, leads, sales, etc.) after receipt of pause notice is considered out of contract and non-payable. From receipt of pause notice Publisher is to begin the process of pausing the campaign, and the volumes in the final hours of the campaign during the pause window should indeed reflect a scaling down of activity.
A campaign sent by the Advertiser to the Publisher shall be set live by the Publisher within 96 hours of receipt, unless a different schedule was provided by the Advertiser to the Publisher in writing. Any campaign for which the Publisher does not deliver a measurable activity within 96 hours of receipt, or otherwise at the scheduled launch as determined by Advertiser, shall be considered paused by both Parties. Activation of a campaign by the Publisher after the initial 96 hours have passed shall require written approval from the Advertiser that it still wishes for the campaign to become active. Activation of a campaign by the Publisher after such 96 hours have passed, without prior written approval from the Advertiser, shall be considered out of contract and non-payable.
Representations and Warranties
Publisher represents and warrants to the Advertiser that at all times throughout the Term that: (i) it has full authority to enter into this Agreement and to carry out and fully perform its obligations hereunder, and there is no restriction, limitation, or obligation, whether contractual statutory or otherwise, which prevents it from maintaining its representations and fulfilling its obligations under this Agreement; (ii) it has obtained, maintains, and is the holder of all licenses, permits, certificates, and authorizations required by any applicable law, regulation, statutory or governmental authority, for it to lawfully operate its website, mobile application and/or services (collectively, “Publisher Services”), and provide, offer, distribute, broadcast, and publicly perform all Creative and campaigns in accordance with this Agreement; (iii) it complies and shall continue to comply with all applicable laws, rules, and governmental (state, local, and community) and regulatory levies and requirements relating to it and the Services; (iv) it will comply with all applicable international, national, state, regional and local laws and regulations in marketing, streaming and providing its Publisher Services, including, without limitation and where applicable, laws, regulations and directives applicable to the processing of personal data and on the free movement of such data, and the protection of privacy; (v) it has and will at all times continue to have sufficient right and title to allow for delivery and placement of Creative or other ad content provided by Advertiser to all online media placements to which Creative is served hereunder, without breaching any rights of any third party or any agreement; (vi) will not allow delivery and placement of Creative or other ad content provided by Advertiser to any online media placements, on which the placement of Content would not conform to Federal Trade Commission industry guidelines for native advertising (vii) it has the full right, authority, permissions, approvals and consents, including from end-users (as applicable), to access, store, collect, analyze, use and process, and allow Advertiser to do the same, personal or personally identifiable data (collectively, “Data”) in connection with the Services and all applicable Creative and campaigns, and in accordance with the terms of this Agreement, and all Data has been and will be legally acquired, and the Data, and its accessing, collection, storage, use, analysis, and processing by Advertiser and/or by Advertiser on Advertiser’s’ behalf does not and will not infringe any third party’s rights; (viii) Publisher Services (and any content therein) do not infringe any Intellectual Property Rights, rights of publicity, privacy or data protection rights of any third party and, except as otherwise explicitly approved by Advertiser in writing, are not vulgar, pornographic or obscene, nor may they harm in any way the goodwill or reputation of Advertiser or disparage or bring Advertiser into disrepute, including by possibly being perceived as indecent, illegal, misleading, harmful, abusive, harassing, liable, defamatory or containing or embodying other offensive materials; (ix) it may not authorize a third party to do any of the foregoing; (x) it shall be solely responsible for creating backup copies of any data and information relating to its provision of the Services, at its sole expense.
Disclaimers; Limitation of Liabilities
Advertiser does not warrant or make any representations regarding the Creative, any other information or materials provided by it, or the conversion rate, success or profitability of any of its campaigns. The creatives and marketing materials (and any part thereof), including without limitation any content, data, products, reports and any information related thereto, are provided on an “as is” and “as available” basis, without any warranties of any kind, express or implied, including warranties of title or non-infringement or implied warranties of use, merchantability, or fitness for a particular purpose or use. Advertiser is not responsible for the results of Publishers’ Services nor its publication of any Creative and/or campaigns, including for any success or failure thereof. Advertiser does not warrant or represent that the services provided or tools used by the Advertiser or any parties on the Advertiser’s side (including but not limited to the developer of any application, any 3rd party tracking platform, the app store & Google Play or any other app distribution platform) under this agreement will operate without interruptions or shall be error free, nor that the Advertiser’s creative or campaign or any goods or services provided by Advertiser to any party are of satisfactory quality including without limitations in regards to merchantability, fitness for a particular purpose,non-interference, non-infringement, usability, quality, availability, security,accuracy, suitability, completeness, truthfulness, effectiveness, and/orreliability of the technology and or the services, including of any content,data, results, or their information obtained or generated in connection withthe publisher’s delivery of the campaign. Advertiser does not endorse anyentity, product, service, or creative used and/or transmitted in connectionwith the Creative nor any advertisers or campaigns. The use of the Creative andany other information or materials provided by Advertiser in connection withthe Services provided by Publisher are at Publisher’s own risk.
Each party shall not be liable for any indirect, incidental, consequential, special or punitive damages, including without limitation loss of or damage to data, loss of anticipated revenues or profits, work stoppage, or impairment of other assets, whether in an action of contract, negligence, or other tortious actions resulting from or arising out of the services (or any part thereof), use or inability to use the Services or any Creative, failure of the Services or any Creative to perform as represented or expected, loss of goodwill or profits, the performance or failure of advertiser to perform under the agreement, any other act or omission of advertiser by any other cause whatsoever, including damages arising from the conduct of publisher, any advertiser and/or any end-users, or any campaigns and/or materials used and/or made available through the services; or based upon breach of warranty, breach of contract, negligence, strict liability, or any other legal theory, regardless of whether or not foreseeable and whether or not it has been advised of the possibility of such damages. Without derogating from the foregoing, the aggregate liability which may be imposed upon Advertiser under this agreement shall not exceed the sum of one hundred (100) US Dollars, with the remaining liability falling solely upon the Publisher.
Publisher hereby acknowledges and agrees that these limitations of liability are agreed allocations of risk constituting in part the consideration for advertiser’s cooperation with publisher and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if advertiser has been advised of the possibility of such liabilities and/or damages.
Each party will defend, hold harmless and indemnify (and its directors, officers and employees) for any losses, liabilities or third party claims resulting from or connected to the breach of the terms hereof by such party. Each party’s indemnification obligation is subject to the party seeking indemnification: (i) promptly notifying the other party of any claim, and (ii) providing the other party with reasonable information and cooperation in defending the claim. Neither side shall settle any claim that affects the other party’s rights without the prior written consent of said party. Both sides may choose to be represented in any proceeding by counsel of its own choice at their own expense.
Intellectual Property and Maintenance
The Creative, any goods and services of the Advertiser and any and all information or materials provided by or to the Advertiser hereunder, including as related to the Services, and any and all intellectual property rights pertaining thereto, including, but not limited to, inventions, patents and patent applications, trademarks, trade names, logos, copyrightable materials, graphics, text, images, designs (including “look and feel”), specifications, methods, procedures, information, know-how, algorithms, data, technical data, interactive features, source and object code, files, interface and trade secrets, whether or not registered or capable of being registered (collectively, “Intellectual Property”), are owned and/or licensed to Advertiser and are subject to copyright and other applicable intellectual property rights under domestic laws, foreign laws and international conventions.
Advertiser hereby grants Publisher, and their affiliate’s network, a nonexclusive, non-transferrable, non-sub-licensable and fully revocable limited license to use the Creative only in connection with the Services, in accordance with the Agreement and for the duration of the Term.
Publisher may not copy, distribute, display, execute publicly, make available to the public, reduce to human readable form, decompile, disassemble, adapt, sublicense, make any commercial use, sell, rent, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of any Creative or other material that is subject to the Advertiser’s proprietary rights, including the Advertiser’s Intellectual Property, either by itself or by anyone on its behalf, in any way or by any means, unless expressly permitted in this Agreement. Further, Publisher may not (i) violate the legal rights of others and/or transmit or otherwise make available in connection with the Services any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component including code to monitor users without their prior consent; (ii) interfere with or disrupt the operation of the Services hereunder or any operation of the Advertiser; (iii) create a database by systematically downloading and storing all or any of the content from Advertiser’s Creative or software and/or forward any data generated from any Advertiser’s assets, materials or information without the prior written consent of Advertiser; (iv) impersonate any person or entity, including, but not limited to, any Company agent or representative, falsely state or otherwise misrepresent affiliation with any person or entity, or express or imply that Advertiser endorses Publisher; and/or (v) use or provide the Services or otherwise act in any way or context that harms the goodwill or reputation of Advertiser or that may disparage or bring Advertiser into disrepute, including any act or use that contains and/or may be perceived as indecent, illegal, misleading, harmful, abusive, harassing, liable, defamatory or other offensive materials.
Advertiser has no obligation to provide support, maintenance, upgrades, modifications, or new releases under these Terms.
Non Circumvention and Non Solicitation
During the term of this Agreement and for a period of six (6) months following the expiration or termination of this Agreement, it is expressly agreed that Publisher, itself or through its officers, directors, agents, associates and related parties and affiliates, directly or indirectly, shall not: (a) initiate, solicit, negotiate, contract or enter into any business transactions, agreements or undertakings with any advertiser of any of the ads provided by Advertiser under this Agreement, except through Advertiser; or (b) seek to by-pass, compete, avoid or circumvent the Advertiser with respect to any advertiser of any of the ads provided by Advertiser under this Agreement. Each advertiser of an ad provided under this Agreement by Advertiser will be deemed to have been introduced by Advertiser to Publisher, unless the advertiser of such ad had run a campaign with the Publisher (independently of the Advertiser) at any time during the twelve (12) months preceding the date of the start of the relevant campaign of such ad.
Without derogating from any other remedy available to Advertiser hereunder or by law, in case of circumvention or otherwise breach of this non-circumvention undertaking, Publisher agrees and guarantees that it will pay a legal monetary penalty that is equal to five (5) times the commission or fee the Advertiser should have received in such transactions. This non-circumvention, non-solicitation and legal monetary penalty for breach thereof is considered to be reasonable by Publisher both in scope and in an extent and Publisher acknowledges and agrees that it is an essential and material part of the total Agreement, by which Publisher agrees that it shall not use any advantages derivable from Advertiser’s advertisers in its own business or affairs.
Modification of Agreement
Advertiser reserves the right to change any of the terms and conditions of this Agreement at any time, with written notice to the Publisher (via the Publisher’s designated Primary Contact as indicated in the IO). Change notices shall be sent to Publisher’s Primary Contact by email, and Publisher shall be responsible for complying with any changes to the Agreement immediately upon receipt. Failure of the Publisher to respond to written notice of changes to the Agreement within seven (7) calendar days will constitute acceptance of the changes to this Agreement. Modifications may include, for example, changes in the scope of available Commission Fees, Payment schedules, Payment procedures and Advertiser campaign rules. Any changes or modifications made will be in ‘good faith’, the Agreement will not be altered to purposely avoid paying Publisher its due Commissions.
Term and Termination
The term of this Agreement will commence upon the execution hereof by both parties and will continue until terminated in writing by either Publisher or Advertiser (the “Term”). Either Publisher or Advertiser may terminate this Agreement at any time, with or without cause, by giving the other Party twenty four (24) hours prior written notice. In the event of a material breach by Publisher, Advertiser may terminate this Agreement immediately without notice or cure period, without liability to Advertiser. Upon the expiration or termination of this Agreement, all licenses granted hereunder shall immediately terminate, and Publisher shall immediately cease any and all use of the Services. Notwithstanding anything to the contrary in the foregoing, this Agreement shall survive the termination of the IO and shall govern any and all future mutually agreed campaigns, unless as agreed otherwise by Advertiser and publisher in writing.
All information disclosed by either Party (“Disclosing Party”) to the other Party (“Receiving Party”), prior to or during the Term, whether in writing, orally or in any other form, which is not in the public domain (“Confidential Information”), shall be held in absolute confidence, and Receiving Party shall take all reasonable and necessary safeguards (affording the Confidential Information at least the same level of protection that it affords its own information of similar importance and in no event less than a reasonable degree of care) to prevent the disclosure of such Confidential Information to third parties. In addition, Receiving Party will limit its disclosure of the Confidential Information to employees with a “need to know” and only in the context of such employees’ fulfillment of their duties under this Agreement. The provisions of this paragraph shall survive termination or expiration of this Agreement, for any reason whatsoever. It is agreed that the following shall not be considered Confidential Information: (1) information that is already known to the Receiving Party at the time of disclosure, as such may be evidenced in the Receiving Party’s written records; (2) information that is or becomes known to the general public through no act or omission of the Receiving Party in breach of this Agreement; (3) information that is disclosed to the Receiving Party by a third party who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; (4) information that was or is independently developed by the Receiving Party without use of or reference to any of the Confidential Information, as such may be evidenced in the Receiving Party’s written records; or (5) information that is disclosed pursuant to a court order, provided that the Receiving Party notifies the Disclosing Party of such order and uses reasonable efforts to limit such disclosure only to the extent required.
Entire Agreement and Miscellaneous
This Agreement reflects the sole agreement between the Parties relating to the subject matter hereof and supersedes all prior understanding, writing, proposals, representations or communication, whether oral or written, of either Party. This Agreement may only be amended by a written instrument executed by both Parties. At any time, Advertiser may block access to the Services (or any part thereof) and/or temporarily or permanently limit, suspend or terminate such access, for any reason, at its sole discretion, in addition to any other remedies that may be available to it under any applicable law, without assuming any responsibility with respect to such actions or any related loss of any data. Publisher may terminate any campaign with twenty four (24) hours prior written notice. Any such termination will take effect only after the end of the twenty four (24) hours from Publisher’s notice. The provisions relating to suspected fraud by Publisher and the provisions of the Representations and Warranties, Disclaimers; Limitation of Liabilities, Indemnification, Intellectual Property, Term and Termination, Confidentiality, and Entire Agreement and Miscellaneous sections hereof, will survive the termination or expiration of this Agreement. This Agreement does not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto. Any claim relating to the Services software will be governed by and interpreted in accordance with the laws of the State of Israel, without reference to its conflict-of-laws principles. Any dispute arising out of or related to this Agreement will be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent courts of Tel-Aviv, Israel. If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. Publisher may not assign, sublicense or otherwise transfer any or all of its rights or obligations under this Agreement without Advertiser’s prior express written consent. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.