These Terms and Conditions (“Terms and Conditions”) and together with the applicable IO and Client Form (hereinafter, collectively the “Agreement”) is a legally binding and enforceable agreement between TrafficPoint Ltd. (“Company” or “we”) and you, a third-party advertiser (“Advertiser” or “you”), that wishes to place, display and promote its goods and services, software, product, etc. (“Product”) within the applicable Company websites, portals or comparison sites (collectively “Company Website”).
Whereas the Company is the owner or has legal rights in the Company Website which enables the Advertiser, subject to the terms herein, to display and deliver its advertising materials, including text, links, images, ads, content, photo, graphics, logos and any other materials or content promoting the Product (“Advertisement” or “Ads”). The Ads may be provided by either Company or Advertiser (as applicable and as agreed between the parties) and shall be displayed and presented either on the Company Website or through various channels such as push notification advertisement, search result page campaigns, etc. all for the purpose of displaying and promoting the Product to end user (each a “Campaign” and collectively the “Service”); and
Whereas the Advertiser wishes to use the Service provided by Company to promote and distribute its Products, all in accordance with and subject to the terms set forth herein.
1. The scope of Service. Subject to the terms herein, Company shall display the Advertisement within the Company Website. The Company reserves the right to reject or remove at any time any Advertiser or Advertisement (in whole or in part), with or without cause or reason, without liability, including, without limitation, if Company suspects that the Advertisement or Product do not comply with this Agreement or applicable laws. Notwithstanding the above, it is hereby clarified Company does not have any obligation to monitor the Advertisement or Products and is not responsible for the accuracy, completeness, appropriateness, legality or applicability of such, which are solely under Advertiser’s liability. Further, Advertiser acknowledges and agrees that: (a) the timing, location, and frequency in which the Advertisement is displayed shall be determined by Company at its sole discretion and subject to the provisions of this Agreement; (b) the Advertisement will be displayed on the Company Website in conjunction with other products or content; and (c) the Company has no control over the identity of the end users exposed to the Campaign, the way such end users may interpret the Advertisement and the effectiveness of the Campaign. THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED TO ADVERTISER, END USER, OR ANY OTHER PERSON AS A RESULT OR IN CONNECTION WITH THE SERVICE OR ADVERTISEMENT. Notwithstanding the above, the Advertiser acknowledges that the Company has no obligation to provide support, maintenance, updates, upgrades or modifications of or to the Service.
2. License Grant. Subject to the terms and conditions of this Agreement, Advertiser hereby grants to Company a royalty-free, worldwide right and license to use, reproduce, transmit, technically modify, distribute, present, display and otherwise use all or part of Advertisement, including the Advertiser’s logo, trademarks, tradenames, copyrights, images and texts (including landing pages) (collectively “Advertiser Materials”), all for the purpose of promoting the Product (“License”). Advertiser shall provide Company with all applicable documentation and creativity necessary to provide the Service. Except as provided herein, Advertiser shall retain all right, title and interest in the Advertiser Materials.
3. Intellectual Property. The Company Website, the Service, including any creative and any part thereof (“Company Property”) is the sole proprietary of Company and protected by copyright, trademark, and other intellectual property laws and treaties. All rights related to the Company Property are owned solely by Company or its licensors and this Agreement does not convey any title or ownership rights to Advertiser. Except as provided herein, the Company retains all right, title and interest in and to the Company Property, including without limitation any derivatives, improvements, and modifications thereto, and all intellectual property rights therein. Advertiser shall abide by all copyright notices, information, and restrictions contained in any content accessed in connection with the Company Property. Further, the Company retains the right, at its sole discretion, to: (a) modify, upgrade or update the Company Website at any time; (b) cease the operation of the Company Website and Service or any part thereof, temporarily or permanently without liability to the Advertiser; and (c) suspend, remove, restrict or disable Advertiser’s access to parts or all of the Service or Advertisement at any time at Company’s sole discretion. The Advertiser, or any third party on its behalf, shall not: (i) copy, 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, reproduce, map out, reverse engineer, decompile, unlock, reverse compile, disassemble or create derivative works of the Service; (ii) remove any notices or copyright information; (iii) interfere with or disrupt the operation of the Service, or the servers or networks that host or connect with the Service or make them available; (iv) forward any data generated from or in connection with the Service without the prior written consent of the Company; (v) use the Service for any illegal, immoral or unauthorized purpose; and (vi) use the Company name or any other trademarks or service marks of Company.
4. Representations and Warranties.
4.1. Each party represents and warrants to the other party that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has the full corporate right, power and authority to enter into this Agreement and its’ obligations hereunder; and (c) the execution of this Agreement does not and will not violate any agreement to which it is a party or by which it is otherwise bound.
4.2. The Company represents and warrants that during the term of this Agreement, the Company Site and Service are and will be owned by it and it does not knowingly infringe or violate any rights of any person or entity. Except as provided herein, the Company Website and Service are provided “AS-IS”. Except as expressly provided in the Agreement and to the fullest extent allowable by law, Company makes no other warranty of any kind, whether express, implied, statutory or otherwise, including, without limitation, warranties of merchantability and fitness for a particular use or non-infringement or those arising in the course of or connected to its performance hereunder, and disclaims any such warranties. In addition, Company does not represent or warrant that: (i) the Service, Company Website or any content and technology available therein will be error free or that any errors will be corrected; (ii) the operation of the Service, Company Website or any technology available therein will be uninterrupted; or (iii) the Advertiser will profit or derive any economic benefit from Advertiser’s use of the Service. In addition, Company uses industry standards of data security measures, however Company does not and cannot guarantee that storage of any data pertaining to the Advertiser or end users data will be secured at all times, and Company shall not be responsible for unauthorized access to or alteration to the Advertiser or any other person’s data or information from or in connection with the Advertiser.
4.3. The Advertiser hereby represents and warrants that: (a) it owns or has the valid legal right or license to use and distribute the Advertiser Material and Product to the extent required or contemplated hereunder, and the Advertiser Material or Product do not and will not, during the term of the Agreement, infringe or violate any applicable laws or regulation, including Intellectual Property Right or any other right of any person or entity; (b) it is the solely responsible for the Advertiser Materials, Product and any content or technology that may be reached or linked via the Advertiser Material, including applicable landing pages; (c) the Advertiser Material placed on the Company Website shall comply with any and applicable laws, regulations and industry best standards; (d) the Advertiser Materials or Product shall not contain any content that: (i) violates any applicable law, rules or regulation including, without limitation, the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and CAN-SPAM Act of 2003 (“CAN-SPAM”); (ii) is in violation of this Agreement; (iii) encourages or incentivizes the end users to visit, click or use the Advertisement or any related or linked content for the purpose of generating actions, revenues in an illegal manner; or (iv) has adversely affect public or private infrastructure or equipment use, endorsement or promotion of content which is adult content, pornographic, sexual, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, or discriminatory activity, promotes illegal drugs or arms trafficking, counterfeiting money, violates export control laws, offensive, misleading or deceptive material (all collectively “Prohibited Content”).
5. Payments and Reporting.
5.1. In consideration of the Service, Advertiser shall pay Company according to the following payment method (“Consideration”) as agreed between the parties in the applicable IO:
• “CPM” shall mean cost per mile and impression;
• “CPC” shall mean cost per click;
• “CPL” which shall mean cost per lead; and
• “CPA” shall mean cost per Action.
For the purpose of this Agreement, “Action” or “Lead” shall mean a sale, subscription, registration, submitting applications, etc. all as agreed in writing between the parties.
5.2. The reporting and tracking shall be based on either the Company’s or Advertiser’s numbers, reports, statistics and tracking, as agreed between the parties upon registration (“Reporting Party”). The Advertiser will provide the Company with an online access to the applicable reporting system and in the event, such online account is unavailable the Advertiser will provide the Company with a daily email report with the above-mentioned information.
5.3. In the event of discrepancies, the disputing party shall provide the other party with a written notice specifying the reasons for the dispute, no later than thirty (30) calendar days from receipt of final report. Following the receipt of a dispute notice the parties will cooperate, in good faith, in order to resolve any such dispute. It is agreed that receipt of a dispute notice or cooperation to resolve any dispute will not affect or delay the payment of any consideration due to Company hereunder.
5.4. Any unpaid charges are subject to interest of 1.5% per month on any outstanding balance, including all collection expenses. In the event of Advertiser’s failure to make payment, Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collecting such amounts.
5.5. Advertiser is solely responsible for payment of any taxes resulting from the acceptance of the Agreement. If any such taxes are required to be withheld, Advertiser shall pay an amount to Company such that the net amount payable to Company after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. In addition, the Advertiser shall be responsible for all income, sales, business, or any other such form of tax, fee, license or payment due in receipt of the transfer of the property or right to use such property under all circumstances.
6. Term & Termination. This Agreement shall commence upon the signing date of the applicable IO and will continue until terminated as follows: (a) each party may terminate this Agreement by providing the other party with a 48 hour prior written notice; or (b) in the event of prepaid Campaign, this Agreement shall terminate automatically when reached the budget and accordingly been fully spent; or (c) Company shall be entitled to terminate this Agreement immediately without prior notice in the event that Advertiser breaches the terms of this Agreement. Upon the termination of this Agreement, for any reason: (a) all rights and License granted herein shall be terminated immediately; (b) Advertiser’s right to use the Service or Company Website or any part thereof shall cease immediately; and (c) the Campaign shall terminate, and Company shall remove the Advertisement from the Company Website. Following the termination of the Agreement, any provisions that in order to fulfill their purpose need to survive the termination, shall survive.
7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WHATSOEVER SHALL NEITHER COMPANY NOR ITS AFFILIATES, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, SHAREHOLDERS, AGENTS, LICENSORS OR REPRESENTATIVES, NOR ADVERTISER OR ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES, OFFICERS, SHAREHOLDERS, AGENTS, LICENSORS OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR THE USE OR INABILITY TO USE THE SERVICES, LOSS OF SALES, DATA, PROFIT, REVENUE, GOODWILL, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR UNAUTHORIZED ACCESS TO INFORMATION, COMPUTER DAMAGE OR SYSTEM FAILURE, SOFTWARE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BASED ON CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH THE EXCEPTION OF EACH PARTY’S INDEMNIFICATION OBLIGATION AS SET OUT IN THESE TERMS, AND TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR AN AMOUNT EXCEEDS THE CONSIDERATIONS ACTUALLY PAID BY ADVERTISER TO THE COMPANY IN CONNECTION WITH THE SERVICE DURING THE SIX (6) MONTHS PERIOD PRIOR TO THE DATE OF THE RELEVANT CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE COMPANY MORE THAN ONE (1) YEAR AFTER THE DATE OF THE APPLICABLE SERVICE.
8. Indemnification. Each party (“Indemnifying Party”) shall defend, indemnify and hold harmless the other party and its respective officers, directors, employees, agents and suppliers (“Indemnified Party”) from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims by third parties resulting from the Indemnifying Party’s breach or alleged breach of this Agreement. The Indemnifying Party’s obligation to indemnify the Indemnified Party hereunder is conditioned upon the Indemnified Party promptly notifying the Indemnifying Party, in writing, within fourteen (14) days of any such claim (however, failure of the Indemnified Party to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder, except to the extent the Indemnifying Party has been damaged thereby), promptly tendering the control of the defense and settlement of any such claim to the Indemnifying Party (at the Indemnifying Party’s expense and with the Indemnifying Party’s choice of counsel), and cooperating reasonably with the Indemnifying Party in defending or settling such claim including, but not limited to, providing any information or materials necessary for the Indemnifying Party to perform the foregoing. The Indemnifying Party will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the Indemnified Party, without the Indemnified Party’s prior consent, which will not be unreasonably withheld. The Indemnified Party will have the right to participate in the settlement or defense of any such claim at its own expense.
9. Dispute Resolution. This Agreement is governed by the Laws of the State of Israel without regards to its conflict of laws principles and shall be brought exclusively before the courts of Tel-Aviv Jaffa, Israel.
10. General. Independent Contractors: Both parties are independent contractors under this Agreement. Nothing contained herein shall be deemed to create an employment, agency, joint venture or partnership relationship between the parties hereto or any of their agents or employees, or any other legal arrangement that would impose liability upon one party for the act or failure to act of the other party. Neither party shall have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other party, or to bind the other party in any respect whatsoever. Assignment: Advertiser may not assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void or a material breach of this Agreement. Company may assign this Agreement at all time. Waiver: No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. Entire Agreement: This Agreement sets forth the entire understanding between the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous, written agreements and discussions concerning the subject matter of this Agreement. Severability: In the event any clause of this Agreement is determined to be void or unenforceable by a court of competent jurisdiction, such clause shall be interpreted as necessary to give maximum force to the provisions thereof, and the validity and enforceability of the remainder of this Agreement shall not be affected. Force majeure: Neither party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder due to any condition beyond its reasonable control, including without limitation to, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war and governmental action.