TERMS AND CONDITIONS
“Advertiser(s)” means third party merchants, retailer, service provider, content provider, affiliate, agent and/or advertiser that make Advertised Content and materials available for distribution together with the Publisher Assets.
“Advertiser Ad Unit(s)” means a unit of advertising Content and/or any data related thereto, provided by Advertiser, including pop-ups, pop-unders, text ad, native ads, standard banners all according to then current industry standards.
“Advertised Content” means Advertiser’s Ad Units, software, services and/or apps that are displayed and presented to users , and which include without limitation, e-commerce Content, games, ringtones, wallpaper, electronic books, music, videos and textual data, all as set forth in the Insertion Order.
“API” means an application program interface which enables interaction between AdExtent and Publisher.
“App Store(s)” means Google Play Store and/or Apple App Store and/or Amazon Appstore and any other applicable mobile application store.
“Applicable Rules” means all applicable laws, rule, regulations, contractual and fiduciary obligations, including without limitation, any terms, policies, guidelines, including the Platform Guidelines, and agreements which may regulate and/or apply to Publisher’s use of the Platform Services or any part thereof, including those of App Stores, social media applications or other platforms.
“Business Day(s)” means a day which is not a Friday, a Saturday or a Sunday, nor a public holiday in Israel or the United States.
“Click Link” means links provided by the Advertiser which enables the End User to download the application from the applicable App Store.
“Confidential Information" means any non-public, proprietary, confidential and/or trade secret information of a party hereof, whether furnished before or after the Effective Date (as set forth in the Insertion Order), and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is non-public, proprietary, confidential, or competitively sensitive. Confidential Information will not include information that: (i) was rightfully in the recipient or its Representatives’ (as defined below) possession prior to its disclosure; (ii) is, or subsequently becomes, publicly available without any party’s breach of any obligation set forth herein; (iii) became known to a party from a source other than the disclosing party by means other than by a breach of the obligation of confidentiality set forth herein; or (iv) is independently developed by the recipient, without relying on or referring to the disclosing party’s Confidential Information.
“Content” means data, information (including Confidential Information), graphics, links, web pages, signs, images, apps, products, software and code (source and binary code), technology, files, data, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.
“End User” means an individual user who downloads, installs and/or uses a Publisher Asset with the Advertised Content.
“Insertion Order” a mutually agreed document that incorporates this Agreement, and contains specific instructions regarding the services provided herein.
“Forbidden Activity” means (a) encouraging conduct that would be considered a criminal offense or could give rise to civil liability, (b) violation of any Applicable Rules; (c) use, endorsement, and/or promotion of any Forbidden Content; (d) violation of any third party terms which are available with or as part of any software and/or product whether used by Publisher or otherwise; and/or (e) distributing of any materials that contains software viruses or any other code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any mobile device, software, hardware, network or telecommunications equipment.
“Forbidden Content” means any content that is, promotes or advocates pornographic, obscene, excessively profane, racial, libelous, gambling-related, threatening, infringing, discriminatory, offensive or deceptive material, promotes illegal drugs or arms trafficking or any type of malware or spyware.
“Intellectual Property Rights” means any and all intellectual property and/or proprietary information under any applicable law, including, but not limited to, inventions, patents and patent applications, Marks, logos, copyrightable materials, graphics, text, images, designs, the "look and feel", specifications, methods, procedures, information, know-how, proprietary knowledge, financial and marketing information, business plans, formulae, technology databases, compilations, algorithms, data, technical data, interactive features, source and object code, files, interface and trade secrets, whether or not registered or capable of being registered, and any derivative works thereof.
“Platform Guidelines” means AdExtent’s Platform Guidelines available at: https://www.copejs.com/guidelines/, as may be updated from time to time.
“AdExtent Services” means AdExtent’s proprietary anti-adblocking platform (the “Platform”) and any additional services and/or features that are made available to Publisher, including the Publisher Account and any related updates, upgrades supplements, support services or any other material, data and Advertised Content made available to Publisher by AdExtent.
“Marks” mean all trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered.
“Postbacks” means communication between the AdExtent servers and Publisher’s servers to inform of an occurrence of any action after the user clicks the Advertiser Ad Unit.
“Publisher Account” means a personal account that is created for Publisher as part of the AdExtent Services and includes a list of the Publisher information, Publisher Assets and their performance, analytics and any other information or features that AdExtent may add, in its sole discretion.
“Publisher Asset(s)” means the Publisher proprietary mobile network and/or mobile applications including, any software code, website, technology, widget, Content and other materials included therein or in connection thereto, excluding the AdExtent Services.
Subject to the terms and conditions herein, Publisher will distribute and promote the Advertised Content on Publisher Assets (the “Distribution”). Publisher acknowledges and undertakes that: (i) it must indicate in the applicable Insertion Order whether it signed this Agreement as a direct mobile application developer or as a network or as an affiliate and any modification to that indication must be preapproved in writing by AdExtent; (ii) it is not authorized to distribute the Advertised Content to sub-publishers, without AdExtent’s prior express written consent; and (iii) all sub-publishers must be identified for AdExtent’s approval. Publisher shall be responsible and liable for all actions of sub-publishers, including compliance with the terms of this Agreement and all Applicable Rules.
Publisher will be solely responsible for the Distribution, and for any costs or expenses connected therewith. AdExtent reserves the right at its sole discretion to impose limitations and/or provide guidelines on Publisher’s provision of the Distribution.
Subject to Publisher’s full compliance with the terms and conditions of this Agreement, and during the Term and for the purpose of Distribution, AdExtent will have the right (but not the obligation) in its sole discretion to provide Publisher with Advertised Content as follows: (a) through Click Links which shall be provided to Publisher by email or API (the “Manual Campaigns”); and/or (b) through the API, which shall include the Geo, CPA rate, Click Links, impression URL and budget, as applicable (the “Static API”); and/or (c) through the API as a response to a specific request made by Publisher for targeted audience (the “Dynamic API”). Additional information may be provided by email, in AdExtent’s sole discretion.
In the event that Publisher is an affiliate network or a network of direct publishers, it shall provide AdExtent prior to the commencement of each campaign with the sub-id of the respective affiliates/publishers.
Publisher may not make any use of the Advertised Content in whole or in part in any manner not expressly permitted by the Agreement. Except as expressly specified in this Agreement, Publisher will not: (a) modify or alter the Advertised Content in any manner including resizing, unless otherwise permitted by AdExtent in advance and in writing; (b) use, copy, create derivative works of or modify the Advertised Content or any part thereof; (c) transfer, sublicense, lease, lend, rent or otherwise distribute the Advertised Content or any part thereof to any other person or entity; and (d) use the Advertised Content in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Agreement. All Advertised Content used together with the Click Links must be provided by AdExtent or subject to AdExtent’s prior written approval.
As part of Publisher’s registration to the AdExtent Services, Publisher will be asked to choose a username and password with which Publisher shall be able to access the Publisher Account. The Publisher Account belongs to Publisher and as such, Publisher agrees: (a) to keep its password secure and confidential; (b) not to permit others to use the Publisher Account; and (c) not to transfer or assign the Publisher Account's password, even temporarily, to a third party. Publisher is solely responsible for anything that happens in the Publisher Account until the Agreement ends and Publisher acknowledges and agrees that AdExtent cannot and will not be liable to Publisher or any third party for any loss or damage arising from Publisher’s failure to comply with this Agreement or from any unauthorized use of the Publisher Account or any other breach of security pertaining to the Publisher Account. Publisher agrees to notify AdExtent immediately of any unauthorized use of the Publisher Account or any other breach of security. Publisher acknowledges and agrees that AdExtent may provide information about Publisher (including the information available in the Publisher Account), to the extent that AdExtent is required to do so in connection with or in relation to any legal process or in accordance with any Applicable Rules.
AdExtent may, in its sole discretion, at any time: (a) determine the scope of the AdExtent Services that are available to Publisher, including, the Advertised Content, the features, settings and/or other tools; (b) modify, correct, amend, update, enhance, improve, remove, replace or make any other changes to, or discontinue, temporarily or permanently, the AdExtent Services (or any part thereof, whether or not previously used by Publisher) (but will have no obligation to do so); or (c) cease the operation of the AdExtent Services or any part thereof, temporarily or permanently upon prior written notice.
Publisher acknowledges and agrees that: (a) with respect to any modification or other changes of the AdExtent Services, Publisher’s only recourse is to terminate the Agreement, in accordance with the provisions of Section 12 below; (b) AdExtent is not responsible for and will have no liability with respect to any third party software, technology, content or materials that are available to Publisher via the AdExtent Services; (c) Publisher’s use of the AdExtent Services following any update to the AdExtent Services will constitute Publisher’s acceptance of, and agreement to be bound by, the then-current scope of the AdExtent Services as determined by AdExtent; and (d) AdExtent has no obligation to provide support, maintenance, updates, upgrades, modifications, or new releases of the AdExtent Services, including any parts thereof.
In addition, AdExtent does not have any obligation to monitor the Publisher Assets and/or the Advertised Content, and as a result, AdExtent is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the Publisher Assets and/or the Advertised Content. Publisher is solely responsible for the Publisher Assets and any Content used and/or deployed by it or any person or entity on its behalf for the provision of the Distribution.
Publisher acknowledges and agrees that Publisher is solely responsible and liable for any and all costs and expenses in connection with the Publisher Assets, as applicable, and/or use of the AdExtent Services or any part thereof, including any QA, integration and testing costs and expenses.
Subject to the terms and conditions of this Agreement, AdExtent hereby grants Publisher a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable license or sublicense, as applicable, during the Term (as defined below) and for the sole purpose of the Distribution, to: (a) access and use the AdExtent Services and any part thereof; (b) implement and distribute the Advertised Content as part of the Publisher Assets; and (c) use the AdExtent Marks (if applicable). All rights which are not expressly granted herein are reserved by AdExtent. Publisher may not make any use of the AdExtent Services, in whole or in part in any manner not expressly permitted under this Agreement. The License will immediately and automatically terminate if Publisher does not comply with any of its obligations hereunder.
Publisher (or any person acting on its behalf) may not: (a) copy, modify, execute or perform publicly, make available to the public, reduce to human readable form, emulate, sell, resell, lease, rent, lend, sublicense, make any commercial use, process, adapt, translate, modify, reverse engineer, combine with any software or application (other than as expressly permitted under this Agreement), decompile, disassemble or create derivative works of any material that is subject to AdExtent’s Intellectual Propriety Rights, including the AdExtent Services and/or any part thereof, or otherwise use the AdExtent Services and/or AdExtent’s Intellectual Propriety Rights in any manner or by any means, other than as expressly permitted under this Agreement; (b) make any use of the AdExtent Services and the Advertised Content, or any part thereof on any other application, website or networked computer environment for any purpose, replicate or copy the AdExtent Services or any part thereof other than as expressly permitted hereunder; (c) interfere with or disrupt the operation of the AdExtent Services, or the servers or networks that host and/or connect with the AdExtent Services and/or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks; and (d) use the Advertised Content and/or the AdExtent Services in any unlawful manner, for any unlawful manner, or in any manner inconsistent with the terms and conditions of this Agreement.
Publisher agrees that AdExtent may: (a) feature the Publisher Assets in different marketing collateral and as part of promotional campaigns, including newsletters, case studies and press releases; and (b) identify Publisher as a user of the AdExtent Services. For that purpose, Publisher agrees to grant AdExtent a limited, worldwide, non-sublicensable, non-exclusive license to use the Publisher Marks solely to engage in the marketing and promotional activities set forth herein. All rights which are not expressly granted herein are reserved by Publisher. AdExtent shall not make any use of the Publisher Marks, in whole or in part, in any manner that is not expressly permitted under this Agreement.
Publisher Obligations and Requirements
The Publisher Assets will not: (a) run without installation; and/or (b) cause the uninstallation or intentionally interfere with the operation and/or default settings of any End User’s device, operating system or other applications installed on any End User's device, and/or intentionally creates, or exploits any security vulnerabilities in any End User's device; and/or (c)compensate End Users for clicking on any advertisements or commercial materials or provide any other incentives or benefits for downloading or installing it; and/or (d) engage in, enable, induce, promote machine generated clicks, click-through or other automated interactions.
Publisher represents, warrants and undertakes that: (i) it shall not take any actions to impede the action of or to disable any links provided by AdExtent and it shall, not modify or interfere with any links or tracking devices; (ii) every click reported by Publisher as part of the Distribution is an intended click by an End User after observing and engaging with the Advertiser Ad Unit; and (iii) at any time in AdExtent’s sole discretion AdExtent may ask Publisher to provide it with screenshots of the Advertiser Ad Units to insure compliance with the terms of this Agreement and Publisher will immediately comply with such demand.
Publisher represents, warrants and undertakes, that: (a) it will not make any representations, warranties and/or guarantees with respect to the AdExtent Services and/or about AdExtent and/or on AdExtent’s behalf, nor will Publisher bind AdExtent to any agreement, without AdExtent’s explicit and prior written approval; (b) the Publisher Assets, including its content, is wholly owned by Publisher e and/or is validly and lawfully licensed to Publisher, and does not infringe or violate any Applicable Rules and/or any right of any person, including Intellectual Property Rights, and Publisher is fully permitted to make any use of Publisher Assets whatsoever, including any use as may be required and/or advisable under this Agreement and/or with respect to the AdExtent Services; (c) Publisher is solely responsible for Publisher Assets and any content, technology and/or functionality available therein or available there-through and/or thereby, including providing, or ensuring the existence of a reasonably accessible opportunity for each End User to uninstall the Publisher Assets.
Publisher Terms will include: (a) its name and contact information; (b) accurate, clear and conspicuous disclosures to End Users what personal data Publisher is going to access, use (and how) and/or share and a way for the End Users to opt out of such collection if required by Applicable Rules; and (c) if and how Publisher Assets may affect any other applications or programs installed on the End Users' device and/or the settings of the End Users' device.
Publisher acknowledges and agrees that: (a) the Publisher Terms are an agreement between Publisher and the End Users and AdExtent is not a party to that agreement; (b) AdExtent may collect, store, use and/or share certain End Users’ data as may be required for the AdExtent Services or in connection therewith and for that purpose, Publisher agrees to grant AdExtent a limited, worldwide, non-sublicensable, non-exclusive license to use the End Users’ data to perform such actions; and (c) AdExtent is not and will not be responsible for, nor have any liability with respect to: (i) any agreement between Publisher and the End Users or any End User’s breach of Publisher Terms; or (ii) Publisher e’s failure to provide the Publisher Terms and/or to obtain valid assent to Publisher Terms from End Users.
Publisher represents and warrants that the Publisher Assets do not contain, distribute or promote any Forbidden Activity nor do the Publisher Assets constitute Forbidden Activity in any manner. In addition, Publisher represents warrants and undertakes that it shall not, nor shall it allow any other person or entity to (i) use the Advertised Content in any manner that constitutes Forbidden Activity; or (ii) engage in any Forbidden Activity in connection with or pertaining to the Advertised Content.
Publisher acknowledges and agrees that at any time during the Term, if in AdExtent’s reasonable judgment it believes Publisher has engaged or is engaging in any Forbidden Activity AdExtent may, in its sole discretion: (i) immediately terminate the Agreement; and/or (ii) take any measures needed to prevent or correct any Forbidden Activity.
Notwithstanding anything to the contrary in this Agreement, Publisher acknowledges and agrees that each instance of Forbidden Activity or a violation of Publisher’s obligations under this Agreement may cause AdExtent irreparable harm and therefore and without derogating from any other remedy available to AdExtent in equity or Applicable Rules, each such instance will entitle AdExtent to: (i) withhold and offset the then current Consideration due to Publisher; and (ii) a non-refundable fine in an amount of a US$10,000 (the “Agreed Penalty”). Without derogating from the aforesaid, each instance relating to incentivized automated and/or machine generated clicks, click-troughs or other automated interactions will entitle AdExtent s to: (i) withhold and offset the then current Consideration due to Publisher; and (ii) non-refundable fine in the amount of the gross revenue generated by Publisher’s activity (“Forbidden Revenues”) plus an additional 20% from the Forbidden Revenues (the “Increased Agreed Penalty”).
Publisher’s use of the AdExtent Services is currently provided free of charge but AdExtent retains the right to charge usage fee in the future, in its sole discretion.
Subject to full compliance with the terms and conditions of this Agreement and if explicitly agreed to by the parties, in writing, Publisher may be entitled to receive payment from AdExtent during the Term according to the terms specified in the relevant Insertion Order (the “Consideration”). Notwithstanding anything else to the contrary set forth in the Agreement, Publisher acknowledges and agrees that AdExtent shall have no obligation to pay Publisher any Consideration with respect to amounts generated as a result of: (i) Publisher’s breach of any of the terms and conditions of the Agreement; and/or (ii) Publisher’s breach of any Applicable Rules; and/or (iii) installs that exceed any cap and/or budget agreed between the parties in writing; and/or (iv) as specified in Section 4.9 of the Agreement. AdExtent may withhold and/or offset (as it shall deem appropriate, in its sole discretion) the relevant portion of any Consideration due to Publisher or any portion of any Consideration previously received by Publisher in respect of any matter under this Section 5.2.
If the campaign is delivered as a Manual Campaign then the calculation and payment of the Consideration will be based on AdExtent’s statistics or a third party tracking service, as determined in its sole discretion. If the campaign is delivered through Static API and/or Dynamic API then the calculation and payment of the Consideration will be based solely on AdExtent’s statistics. The above is the only measuring systems that shall apply herein, and no other measurements or statistics of any kind shall be accepted by AdExtent or have any effect under the Agreement. Publisher acknowledges and agrees that the calculation of the Consideration as determined by AdExtent is final and binding.
The Publisher Account includes a dashboard where Publisher will be able to view reports regarding the number of impressions (if applicable), clicks, installs and eCPM rates (the “Publisher Dashboard”).Publisher acknowledges and agrees that the Publisher Dashboard is provided to Publisher for convenience p urposes only and AdExtent is not liable for any unavailability or inaccuracy, temporary or otherwise, of the Publisher Dashboard. During the Term Publisher shall receive a daily report with respect to the estimated Consideration due to Publisher, via email, to the email address Publisher provided in the Publisher Account (the “Daily Report”). Publisher acknowledges and agrees that the manner in which and the form of the Daily Report, including without limitation, the manner in which the Consideration is calculated and presented, shall be determined by AdExtent, in its sole discretion, and may be modified and/or altered by AdExtent at any time without prior notice to Publisher. Publisher further acknowledges and agrees that the information provided in the Publisher Account, including the Publisher Dashboard, the Postbacks and the Daily Report, will be deemed final 60 days after they have been sent to Publisher and as such Publisher acknowledges that until such time the Consideration may be subject to revisions, in AdExtent’s sole discretion.
If Publisher wishes to dispute the calculation detailed in a Daily Report, it will provide AdExtent with a written notice (via e-mail to the address set forth in the Insertion Order) specifying the reasons for the dispute with as much detail as possible (the “Dispute Notice”), by no later than seven (7) days as of receipt of a Daily Report (the “Dispute Notice Period”). Following receipt of a Dispute Notice, the parties will cooperate, in good faith, in order to resolve any such dispute. Publisher acknowledges and agrees that if no Dispute Notice is received by AdExtent with respect to an applicable Daily Report during the applicable Dispute Notice Period, then such Daily Report will be considered as final and non-appealable proof for the purpose of computing the Consideration due and payable by AdExtent pursuant to the terms of the Agreement.
Payment of the Consideration (if any) will be made on a Net 60 day’s basis, in U.S. Dollars by electronic funds transfer. Publisher agrees that AdExtent’s failure to remit payment which is cured by AdExtent within ten (10) Business Days of the due date shall not be considered as a breach by AdExtent of its payment obligation hereunder. Further, Publisher agrees that AdExtent shall not be required to pay Publisher until such time that the amount owed to Publisher equals or exceeds Two Hundred and Fifty U.S. Dollars (US$250), therefore, if the amount due to Publisher for any applicable calendar month is less than Two Hundred and Fifty U.S. Dollars (US$250), then it will be carried over until such time as the payment due to Publisher equals or exceeds Two Hundred and Fifty U.S. Dollars (US$250).
In connection with the Consideration, Publisher acknowledges and agrees that AdExtent does not and cannot guarantee that Publisher‘s use of the AdExtent Service will necessarily entitle Publisher to and/or result in any revenues and/or in any payment to Publisher whatsoever.
Publisher acknowledges and agrees that it will pay all applicable taxes, including without limitation, value-added, customs fees, import duties or other taxes and duties imposed by any governmental authority imposed on Publisher with respect to the Consideration. Furthermore, Publisher agrees to refund AdExtent for any Consideration that was paid to Publisher and is subject to chargeback or other fees AdExtent may have paid following payment to Publisher.
Publisher agrees to: (i) provide AdExtent with accurate, current and complete information in connection with the payment of any Consideration due to Publisher hereunder, (ii) comply with Applicable Rules with respect to receipt of Consideration hereunder; and (iii) complete any required tax or other forms in order to receive Consideration, to the extent applicable. Publisher hereby authorizes AdExtent, directly or through third parties, to make any inquiries that AdExtent deems necessary or appropriate in order to verify the information Publisher provided AdExtent in connection with any payment made to Publisher hereunder.
The AdExtent Services and any part thereof and the Advertised Content, , including any derivatives thereof, and any and all Intellectual Property Rights therein pertaining thereto and/or available thereby (collectively, the “AdExtent Property”), are owned by and/or licensed to AdExtent and are subject to AdExtent’s copyright and other applicable Intellectual Property Rights under Applicable Rules. Except as expressly granted hereunder, as between the parties, AdExtent retains all right, title and interest in and to the AdExtent Property. As between the parties, all use of the AdExtent Property shall inure to AdExtent’s benefit and Publisher shall not: (a) contest, or assist others to contest, AdExtent’s rights or interests in and to AdExtent Property or the validity of AdExtent’s rights in and to the AdExtent Property and all applications, registrations or other legally recognized interests therein, or (b) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to the AdExtent Property. All rights in the AdExtent Property which are not expressly granted herein are reserved by AdExtent. Publisher must retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the AdExtent Property.
Except as expressly granted in this Agreement, Publisher retains all right, title and interest in and to the Publisher Assets and the Publisher Marks, any derivatives thereof, including any Intellectual Property Rights therein (the “Publisher’s Property”). All rights in the Publisher’s Property which are not expressly granted herein are reserved by Publisher.
Each party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from a party’s use of the other party’s Marks as permitted hereunder will inure solely to the benefit of the other party.
During the Term hereof, each party may have access to the Confidential Information of the other party, therefore, the recipient of Confidential Information agrees: (i) not to disclose the disclosing party’s Confidential Information to any person or entity other than to its shareholders, directors, officers, affiliates, employees, advisors or consultants (collectively, the "Representatives") and then only on a “need to know” basis and provided that these Representatives are bound by written agreement to comply with the confidentiality obligations contained herein; (ii) not to use any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and obligations under this Agreement; and (iii) to keep the disclosing party's Confidential Information confidential using the same degree of care it uses to protect its own Confidential Information, which shall not be in any event less than a reasonable degree of care.
At any time upon the written request of disclosing party, recipient shall return to disclosing party, or destroy, in accordance with disclosing party’s written instructions, all of disclosing party's Confidential Information in its possession, including without limitation, all writing or recordings whatsoever prepared by recipient and based on disclosing party's Confidential Information and recipient shall provide disclosing party with a written certificate, evidencing the destruction of disclosing party's Confidential Information.
Notwithstanding the foregoing, in the event that recipient is required by legal process, order of any court of competent jurisdiction, or any applicable law, rule or regulation to disclose any of disclosing party’s Confidential Information, then prior to any such disclosure, recipient will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief, and further provided, that if such protective order or other remedy is not obtained, recipient shall disclose only that portion of the disclosing party’s Confidential Information that it is legally required to disclose by advise of its counsel, and shall use all actions required to obtain confidential treatment for such Confidential Information. Further to the above, Publisher acknowledges and agrees that if AdExtent is required by legal process, or applicable law to disclose information related to the Publisher in connection with its use of the AdExtent Property (as defined above), AdExtent may disclose such information, without notice to Publisher.
It is agreed that if recipient fails to abide by its obligations under this Section, disclosing party will be entitled to immediate injunctive relief, in addition to any other rights and remedies available to it at law or in equity.
The obligation to protect the Confidential Information shall survive and continue, following the termination of this Agreement for a period of three (3) years, unless a longer period of protection is available under applicable law.
Publisher acknowledges that AdExtent has developed valuable and unique relationships with AdExtent’s affiliates, third party traffic distribution networks, customers, distributors, suppliers and other partners (collectively, the “Restricted Third Parties”). Accordingly, during the Term and for a period of twelve (12) months thereafter, Publisher shall not, whether on its own account and/or on behalf of others, directly and/or indirectly, in any way enter into or conduct negotiations with, engage or respond to any unsolicited offers from, interfere with and/or endeavor to entice away, recruit, offer and/or solicit, any of the Restricted Third Parties. In the event that Publisher breaches its obligations pursuant to this Section, Publisher shall be liable to AdExtent for an immediate contractual penalty of USD100,000 for each case of such breach, plus all damages incurred as a direct or indirect result of said breach without derogating from AdExtent’s right to any other additional remedies it may be entitled to in accordance with Applicable Rules.
Representations & Warranties.
Each of the parties hereby represents and warrants that: (a) this Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; (c) it is duly organized and in good standing under the laws of its state of organization; and (d) the execution of this Agreement or the performance by it of its obligations under this Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject.
AdExtent hereby represents and warrants that during the Term hereof, it will use commercially reasonable efforts to perform its obligations hereunder. AdExtent does not have any obligation to monitor the Advertised Content, for any purpose and, as a result, are not responsible for the accuracy, completeness, appropriateness, legality or applicability of the Advertised Content or anything described or contained therein. The AdExtent Services are provided on an "AS-IS" basis. Except as expressly provided in this Agreement and to the fullest extent allowable by Applicable Rules, AdExtent makes no other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation, warranties of merchantability, fitness for a particular use or non-infringement or those arising in the course of or connected to the performance hereunder, and disclaim any such warranties. In addition, AdExtent does not represent or warrant that: (i) the AdExtent Services or any part therein will be error free or that any errors will be corrected; (ii) the operation of the AdExtent Services or any part therein will be uninterrupted; or (iii) Publisher will profit or derive any economic benefit from Publisher’s use of the AdExtent Services. Some states or jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply.
Publisher hereby represents and warrants that: (i) any and all activities and/or obligations it undertakes in connection with this Agreement shall be performed in compliance with all Applicable Rules, including, without limitation, United States Federal laws and privacy laws, rules and regulations; (ii) it is solely responsible for the Publisher Assets and the manner in which it promotes and advertises the Advertised Content; (iii) it has the requisite qualifications, knowledge, ability and skills and business contacts required to perform the Distribution; (iv) it will not act in any manner that may have any adverse impact on the goodwill and/or reputation of AdExtent; (v) it will only use the AdExtent Property for the purposes and in the manner expressly permitted under the Agreement; (vi) neither it nor any other third party on its behalf, will generate and/or try to increase traffic to the Publisher Assets by using any Forbidden Activity and/or by using incentivized automated and/or machine generated clicks, click-troughs or other automated interactions; (vii) it shall not bind AdExtent to any agreement or obligation or give any representation, warranty or guarantee in respect of AdExtent, except for those that are specifically authorized by AdExtent in advance and in writing; and (viii) it will only use the AdExtent Services for the purposes and in the manner expressly permitted under this Agreement.
Limitation of Liability.
IN NO EVENT WILL EITHER PARTY, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION TO DAMAGES FOR ANY LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, LOSS OF CUSTOMERS, LOSS OF ANY EQUIPMENT OR SOFTWARE, SYSTEMS, COMPUTER DAMAGE OR SYSTEM FAILURE, LOSS OF DATA OR INFORMATION, SERVICE INTERRUPTION, INTEREST CHARGES OR COST OF CAPITAL, COST OF PROCUREMENT OF SUBSTITUTE EQUIPMENT, SOFTWARE, SYSTEMS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR WITH RESPECT TO ADEXTENT, PUBLISHER’S ABILITY OR INABILITY TO USE THE ADEXTENT SERVICES UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY SHOULD HAVE REASONABLY FORESEEN OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNTS PAID BY ADEXTENT UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM IS MADE. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 10 SHALL NOT LIMIT EITHER PARTY’S LIABILITY FOR BREACH OF ITS OBLIGATIONS UNDER SECTIONS 6, 7 AND 11. THE LIMITATION OF LIABILITY INCLUDED IN THIS SECTION SHALL NOT APPLY TO CASES OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Each party (the “Indemnifying Party”) will defend, hold harmless, and indemnify the other party and/or its subsidiaries, affiliates, directors, officers, employees, agents, its licensors, successors and permitted assigns (collectively, the "Indemnified Group") from and against any and all claims, suits, actions, demands, proceedings, costs, expenses, losses, damages and/or liabilities of any kind (including but not limited to reasonable attorney's fees) threatened, asserted or filed, brought, commenced or prosecuted (collectively, “Demands”) by any third party against the Indemnified Group arising out of or relating to: (a) any acts or omissions on the part of the Indemnifying Party; (b) a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under this Agreement; (c) a breach or alleged breach of any third party rights, and with respect to Publisher’s End Users’ privacy rights; and (d) with respect to Publisher, the End Users' use of the Publisher Assets. The Indemnified Group will: (i) promptly notify the Indemnifying party of any Demand; (ii) provide the Indemnifying party, at the cost of the Indemnified Group, reasonable information and assistance in defending the Demand; and (iii) give the Indemnifying party control over the defense and settlement of the Demand; provided, however, that any settlement will be subject to the Indemnified Group’s prior written approval (which approval shall not be unreasonably withheld or delayed). The Indemnified Group may join in the defense of any Demand at its own expense.
Term and Termination
This Agreement shall commence on the Effective Date (as set forth in the Insertion Order) and shall continue in force and effect thereafter for additional periods of twelve (12) months unless terminated by either party, in accordance with Section 13.2 below (the "Term").
This Agreement may be terminated in accordance with any of the following provisions:
Either party may terminate this Agreement or suspend ant campaign upon twenty-four (24) hours’ prior written notice, for any reason and without liability. During the prior written notice period, Publisher shall not increase the amount of requests sent to AdExtent’s ad server in comparison to the average number of requests sent during the 24 hours prior to the prior written notice period.
Each party may terminate this Agreement, if the other party: (i) breaches any of its obligations, representations and/or warranties herein contained and does not cure such breach within 10 days of receipt written notice thereof, or (ii) becomes insolvent or make any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency, administration or receivership proceeding, or have any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within thirty (30) days of such filing, or have a trustee, administrator or receiver appointed for a material portion of its business or assets. If a party becomes subject to any of the foregoing events it will immediately provide the other party with written notification thereof.
AdExtentmay immediately, block Publisher’s access to the Publisher Account, temporarily or permanently, suspend the Publisher Account or terminate this Agreement, withhold any payment due hereunder to the extent determined by AdExtent in addition to any other remedies that may be available to AdExtent under this Agreement and/or any Applicable Rules, if Publisher: (i) engage in any acts prohibited by this Agreement, or (ii) engage in any action that, in AdExtent’s sole discretion, reflects poorly on AdExtent otherwise disparages or devalues AdExtent’s reputation or goodwill. In addition, AdExtent may terminate this Agreement if AdExtent determines that it is commercially impractical for AdExtent to continue providing and/or supporting the AdExtent Services or any part thereof under the terms of this Agreement as a result of business, technical or other considerations.
Upon the termination of this Agreement, for any reason: (i) all rights and licenses granted herein shall terminate immediately; (ii) Publisher’s right to use the AdExtent Services and/or any part thereof, will terminate and Publisher must promptly remove and delete any Advertised Content from the Publisher Assets ; (iii) Publisher’s access to the Publisher Account will be blocked; (iv) to the extent that Publisher has any of the Confidential Information at its disposal at the time of termination of this Agreement, Publisher will return to AdExtent, or destroy and certify the destruction of, all of the Confidential Information, in accordance with Section 7 above.
AdExtent will not be liable to Publisher or any person for the termination of this Agreement or termination of Publisher’s access to the Publisher Account. Furthermore, AdExtent will have no obligation to maintain any information stored in its data centers related to the Publisher Account or to forward any information to Publisher or any person following the effective date of termination of this Agreement. Following the termination of this Agreement or suspension of the Publisher Account, any information which is related to the Publisher Account may no longer be accessed by Publisher.
The following sections will survive the termination of this Agreement: Sections 1, 3, 6, 7, 10-11, this Section 12.5, and Section 13.
In this Agreement (except where the context otherwise requires): (a) words denoting the singular include the plural and vice versa; (b) words denoting any gender include all other genders; (c) any reference to “persons” includes individuals, corporations, companies, partnerships, unincorporated associations, firms, trusts and all other legal entities; and (d) any reference to “include” or “including” shall be read to mean “without limitation”.
The parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other, nor shall either party have any right or authority to create any obligation on behalf of the other party.
This Agreement together with the Platform Guidelines constitutes the entire understanding between the parties with respect to the matters referred to herein and supersedes and cancels all prior agreements to the subject hereof, if any, between the parties. The headings of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. The Agreement may only be amended by the parties’ mutual written consent.
Publisher agrees that AdExtent shall not be subject to or bound by any Publisher insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether AdExtent or any of its Representatives "clicks through" or otherwise indicates its acceptance thereof.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
The captions and headings in this Agreement are for convenience purpose only and shall not affect the construction or interpretation of this Agreement.
Failure of by AdExtent to enforce any rights or to take action against Publisher in the event of any breach hereunder shall not be deemed a waiver of such rights or of subsequent actions in the event of future breaches.
Neither party shall be entitled to assign or transfer this Agreement or any of its rights or delegate any of his obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, AdExtent may assign any of its rights and obligations under this Agreement, without receiving Publisher’s consent: (a) if such assignment is made to any of its affiliates or subsidiaries; or (b) in connection with any merger, consolidation, change of control or sale of all or a material portion of its assets. Any unauthorized assignment or transfer shall be null and void.
This Agreement will be governed by, construed and enforced in accordance with the laws of the state of Israel, without regard to its conflicts of law principles or provisions. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Any disputes arising out of or in connection with this Agreement shall be finally exclusively settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”) by one arbitrator appointed in accordance with the ICC Rules (the “Arbitrator”). The arbitration shall take place in Tel Aviv, Israel and shall be conducted in the English Language. The arbitration shall be conducted on a confidential basis. The award passed by the Arbitrator shall be final and binding on both the parties. Nothing contained herein shall prevent AdExtent from applying to any court of law in order to (i) obtain injunctions or any equivalent remedy, against the other Party, in order to restrain the breach of any restrictive covenants pursuant to this Agreement, or (ii) obtain specific performance of the payment obligations set forth in section 5 of this Agreement. The arbitration award shall be enforceable in any court of competent jurisdiction. Any motion to enforce or vacate an arbitration award under this agreement shall be kept confidential to the maximum extent possible.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
All notices required or permitted under this Agreement shall be in English and in writing. Notices shall be delivered as follows: (a) to AdExtent - by e-mail, registered or certified mail (postage prepaid) or by overnight courier service, at the address set forth on the Site, and (b) to Publisher – by e-mail to address associated with Publisher Account. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via e-mail, (iii) within one (1) Business Day of being sent by overnight courier, or (iv) within three (3) Business Days of being sent by registered or certified mail. For purposes of the foregoing, Publisher agrees that AdExtent may rely upon the e-mail address Publisher provided when Publisher creates the Publisher Account and that AdExtent will not be responsible for delays in the delivery of e-mails which delays are not associated with AdExtent’s mail server.