ironSource Display Advertiser Agreement
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Last updated on: June 29, 2016. By continuing to access and/or use the IronSource Display Platform following any update to this ironSource Display Advertiser Agreement, you are indicating that you have read and agree to its updated terms and conditions. Important information please read carefully : this IronSource Display Advertiser Agreement (the “Agreement”) is a legally binding and enforceable agreement between ironSource Neon Ltd. (“we”, “us” or “our”) and you, an Advertiser (“you”). The IronSource Display Privacy Policy (available at: http://display.ironsrc.com/pages/privacy/ ) (“IronSource Display Privacy Policy”), the IronSource Display Website Terms of Service (available at: http://display.ironsrc.com/pages/terms/ ) (“IronSource Display TOS”) and the IronSource Display Guidelines (available at: http://display.ironsrc.com/pages/guidelines/ ) are incorporated herein by reference and are an integral part of this Agreement. In the event there is a contradiction between the terms and conditions hereunder and the terms of the IronSource Display Privacy Policy, the IronSource Display Privacy Policy will prevail. Except as explicitly set forth herein, no other terms and conditions, agreements and/or policies apply to the party’s relationship with respect to the subject matter hereof (including without limitation any terms either party may accept online). Certain elements of the IronSource Display Platform or other services or programs offered by us may have different terms and conditions that may apply to them or may require you to agree with and accept additional terms and conditions (“Additional Terms”) in order to use or access them. If there is a conflict between the terms of this Agreement and any Additional Terms, the Additional Terms will prevail. YOU ACCEPT THIS AGREEMENT BY CLICKING “SIGN UP” (OR ANY SIMILAR LANGUAGE), AND BY ACCESSING OR USING THE IRONSOURCE DISPLAY PLATFORM OR YOUR IRONSOURCE DISPLAY ACCOUNT, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT AND AGREE THAT WE WILL TREAT YOU AS A PARTNER ON THE IRONSOURCE DISPLAY PLATFORM FROM THAT POINT ONWARDS. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE IRONSOURCE DISPLAY PLATFORM. If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such company or entity and its affiliates to the terms and conditions contained herein, in which case the terms “you” or “your” shall refer to such company or entity and its affiliates. If you do not have such authority, or if you do not agree to the terms and conditions of this Agreement, you must not accept this Agreement and may not access and/or use the IronSource Display Platform. In addition, you consent to the use of electronic means and/or records to preserve your acceptance of this Agreement and storing information related to this Agreement and your use of the IronSource Display Platform. You also agree that we may provide you with notices in accordance with this Agreement. We recommend that you save a copy of this agreement for your records. You may not access the IronSource Display Platform if (a) you are our direct competitor, except with our prior written consent, or (b) you accept this Agreement for purposes of analyzing and testing their availability, performance or functionality, or for any other competitive purposes. Definitions. 1.1 “ Ad Inventory ” means digital advertising inventory, including web, mobile, mobile web, application and/or widget based advertising inventory, including Ad Units (as defined below). 1.2 “ Ad Tag ” means any programing code or HTML provided by us and which requests us to serve an Ad Unit. 1.3 “ Advertiser ” means a party hereto if checked on the IO, or any third party, an agency, or a network that sells or attempts to sell Advertiser Ad Units and/or IronSource Display Ad Units through the Services.
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“ Advertiser Ad Unit(s) ” means a unit of advertising Content and/or any data related thereto, provided by Advertiser, including popups, popunders, text ad, native ads, standard banners all according to then current industry standards. “ Advertiser Materials ” means any and all Content provided and/or used by you in connection with the IronSource Display Platform and/or Third Party Platform, including Advertiser Ad Unit(s). “Affiliate” means any person or entity controlled by, controlling, or in common control with any party hereto, as the case may be. A person or entity shall be deemed to control another entity if it possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other entity, whether through ownership of voting securities or partnership interests, representation on its board of directors or similar governing body, by contract or otherwise (“means of control”). Without derogating from the generality of the foregoing, a person or entity shall be deemed to be in control of another entity if they hold more than 50% of any one of the means of control of such other entity. “ Applicable Rules ” means all applicable laws, rules and regulations, contractual and fiduciary obligations, including any third party policies, guidelines and agreements which may regulate and/or apply to the Services or any part thereof, including those of applications marketplaces and Third Party Platforms if applicable. “ Asset(s) ” means websites, URLs, mobile assets, mobile web assets and any other Content used and/or made available by Publisher in connection with the Platforms. “Business Day” means a day which is not a Friday and Saturday, nor a public holiday in Israel. “Confidential Information ” means any nonpublic, proprietary, confidential or trade secret information of a party hereof, whether furnished before or after the Effective Date, and regardless of the manner in which it is furnished, given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive. “Content” means data, information, graphics, links, web pages, signs, images, software, applications and code (source and binary code), technology, files, texts, photos, audio or video, sounds, visual works, works of authorship, and components. “IronSource Display Ad Unit(s) ” means a unit of advertising content and/or any data related thereto, provided by us, including popups, popunders, text ad, native ads, video ads standard banners, all according to then current industry standards. “ IronSource Display Guidelines ” means our IronSource Display Guidelines available on the IronSource Display Site at: http://display.ironsrc.com/ , as may be updated from time to time . “IronSource Display Platform ” means our proprietary Ads display and delivery platform including, any Content, documentation and/or features available therein but specifically excluding any Content provided or made available by a third party (including the Advertiser Materials and Third Party Platforms). “ End User ” means an end user on the ironSource Display Platform and/or any Third Party Platform. “ 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 you or otherwise; (e) distributing via the Platforms any material that contains software viruses or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment; and/or (f) any activity which does not comply with the IronSource Display Guidelines. “ Forbidden Content ” means any content that is, promotes or advocates pornographic, obscene, excessively profane, racial, libelous, gamblingrelated, threatening, infringing, discriminatory, offensive or deceptive material, promotes illegal drugs or arms trafficking or any type of malware or spyware. “Intellectual Property Rights” means all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered domain names, Marks and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and confidential business and technical information (including, without limitation, research and development, programming, knowhow, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications); (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
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1.19 “Marks” means trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered. 1.20 “Publisher” any third party or a network including IronSource Display, that buys or attempts to purchase Ad Units through the Services. 1.21 “Third Party Platform(s)” means a third party advertising network, exchange or other biddable source of Ad Units. Modifications. We reserve the right to modify, discontinue or terminate the IronSource Display Platform or any part thereof, or to modify this Agreement at any time, and without prior notice to you. If we modify this Agreement, we will update this Agreement on the IronSource Display Site at: http://display.ironsrc.com/ , and in addition, should the update be material, provide you with notice pertaining to such update. Please note that it is your responsibility to review the Agreement from timetotime to check for updates. When the Agreement is updated, we will also update the date at the top of this Agreement accordingly. By continuing to access or use the IronSource Display Platform following any update, you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the IronSource Display Platform. Scope. 3.1 Subject to your full compliance with the terms and conditions of this Agreement, during the Term (as defined below), we will provide you with certain services via the IronSource Display Platform and/or Third Party Platforms (together, the “ Platforms ”) as set forth in IO(s) which shall be agreed between the parties from time to time (the “ Service(s) ”). With respect thereto, you hereby give us permission to use the Advertiser Materials for Services provided via Third Party Platforms. You acknowledge and agree that for such Service, we shall utilize our accounts with the applicable Third Party Platforms, and therefore you hereby consents to such use of the Advertiser Materials. 3.2 We retain the exclusive right at our sole discretion (and without prior notice), to: (a) determine the setting, features, functionality and look and feel of the IronSource Display Platform and any part thereof; (b) upgrade and/or update the IronSource Display Platform or any part thereof, including, by adding, removing and/or changing any Content, materials or functionality available therein; and (c) determine and manage the Ad Inventory for the purposes of this Agreement, including rejecting any Advertiser Materials. 3.3 You shall (at our own expense) be solely responsible for providing us with the Advertiser Materials in a mutually agreed upon format. On an ongoing basis throughout the Term, you shall promptly provide us with updates, upgrades or other modifications of the Advertiser Materials. At our request, you, at your sole expense, will provide us with technical support as may be required for us to facilitate the Services. 3.4 You acknowledge and agree that we shall not be liable for: (i) any Content provided by any third party (including Advertiser) and/or for any Content available via Third Party Platforms; and (ii) any unavailability temporarily or otherwise of the Platforms where and to the extent such unavailability is due to any cause or circumstances beyond our reasonable control. 3.5 In addition, from time to time, we may offer you to try certain Beta services at no charge. You may accept or decline any such offer at your sole discretion. Beta services will be clearly designated as beta, pilot, limited release, preview, evaluation or any similar description, and are meant for evaluation purposes only. Beta services are not considered as IronSource Display Platform under this Agreement and may be subject to additional terms. Beta services may be discontinued at any time in our sole discretion and we may never make them generally available. You acknowledge and agree that we will have no liability for any harm or damage arising out of or in connection with any Beta service. License. 4.1 Subject to the terms and conditions of this Agreement, we hereby grant you, during the term hereof, a revocable, nonexclusive, nonassignable, nontransferable, nonsublicensable, right and license to use the IronSource Display Platform solely for the purpose of display and delivery of Advertiser Ad Units and/or IronSource Display Ad Units (collectively, “ Ad Units ”) on the Assets, as set forth herein (the “ IronSource Display License ”). All rights which are not expressly granted herein are reserved by us. You may not make any use of the Platforms, in whole or in part, in any manner not expressly permitted by this Agreement. You will not attempt to interfere with or disrupt the Platforms or attempt to gain access to any systems or networks that connect thereto. 4.2 Except as expressly specified in this Agreement, you will not: (a) use, copy, create derivative works of, disable or modify the Platforms or any part thereof; (b) transfer, sublicense, lease, lend, rent, sell, or otherwise distribute 3
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the Platforms or any part thereof to any other person or entity; (c) integrate the Platforms or any part thereof with any other product or service, or make any other disposition in or with respect to the Platforms; or (d) use the Platforms (as applicable) in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. You agree not to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Platforms or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so. 4.3 Subject to the terms and conditions of this Agreement, you hereby grant us and Third Party Platforms (as applicable), during the term hereof, a royaltyfree, worldwide right and license to use, reproduce, reasonably modify, distribute and display the Advertiser Materials, as applicable, including Advertiser’s Marks, all for the purpose of providing the Services hereunder (the “ Advertiser License ”). All rights which are not expressly granted herein are reserved by you. We will not attempt to interfere with or disrupt the Advertiser Materials or attempt to gain access to any systems or networks that connect thereto. 4.4 Except as expressly specified in this Agreement, we will not: (a) use, copy, create derivative works of, disable or modify the Advertiser Martials or any part thereof; (b) transfer, sublicense, lease, lend, rent, sell, or otherwise distribute the Advertiser Martials or any part thereof to any other person or entity; (c) integrate the Advertiser Martials or any part thereof with any other product or service, or make any other disposition in or with respect to the Advertiser Martials; or (d) use the Advertiser Martials (as applicable) in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. We agree not to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Advertiser Martials or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so. 4.5 Nothing herein contained shall be construed as restricting either party from its right to offer, sell, lease, license, modify, publish or otherwise distribute, with respect to IronSource Display, the Platforms (as applicable) and with respect to Advertiser, the Advertiser materials, in whole or in part, or offer the same services as provided herein, to any other person or entity, directly or indirectly. 4.6 You agree that we may: (a) feature the Advertiser Marks in different marketing collateral and as part of promotional campaigns, including newsletters, case studies and press releases; and (b) identify you as an advertiser of the our Platform. For that purpose, you agree to grant us a limited, worldwide, nonsublicensable, nonexclusive license to use the Advertiser Marks solely to engage in the marketing and promotional activities set forth herein. All rights which are not expressly granted herein are reserved by you. We shall not make any use of the Advertiser Marks, in whole or in part, in any manner that is not expressly permitted under this Agreement. 4.7 Advertiser acknowledges that IronSource Display has developed valuable and unique relationships with its affiliates, third party traffic distribution network, customers, distributors, suppliers and partners (collectively, “Restricted Third Parties”). Accordingly, during the term of this Agreement and for twelve (12) months thereafter, Advertiser 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 Advertiser breaches its obligations pursuant to this Section, the Advertiser shall be liable to IronSource Display for an immediate contractual penalty of USD 100,000 for each case of breach, including all damages incurred as a direct or indirect result of said breach. ThirdParty Platforms. 5.1 As part of the IronSource Display Platform, we may provide you with certain services via ThirdParty Platforms. Any use by us on your behalf of such ThirdParty Platforms, and any exchange of data on your behalf with any ThirdParty Platform, is solely based on your representations and warranties contained herein and therefore you are solely responsible for it. If your do not wish us to use ThirdParty Platforms as part of the Services, then you must either indicate it on the IO or send us a written notice thereof. 5.2 If the Services include usage of any ThirdParty Platform, then you allow such ThirdParty Platform to access your users’ data, if applicable and as needed for the operation of that ThirdParty Platform. ThirdParty Platforms may use Cookies or other tracking mechanisms and have their own terms and conditions and privacy policies (“ Third Party Platforms’ Terms ”). For purposes hereof, the term “Cookies” means a small text files, given ID tags that are stored on a users’ computer's browser directory or program data subfolders. Cookies are created when a user uses its browser to visit a website that uses cookies to keep track of the user’s movement within the website, remember a user’s registered login, preferences, and other customization functions.
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We have no control over and are not responsible for any ThirdParty Platform. You assume all responsibility and risk of use of any ThirdParty Platforms and we hereby disclaim any and all liability to you or any third party related thereto. We do not have any obligation to monitor any materials or content that is available as part of the Services including as part of ThirdParty Platforms, for any purpose and are not responsible for the accuracy, completeness, appropriateness, legality or applicability of any such content including, any information obtained by using the Services.
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Your Obligations. 6.1 You represent and warrant that you: (a) are of a legal age according to the Applicable Rules of the country in which you reside or from which you access the IronSource Display Platform, and in any event are not under the age of 13; (b) are not currently restricted from using the IronSource Display Platform, or not otherwise prohibited from having an account with us; and (c) will only provide us with accurate information in connection with your use of the IronSource Display Platform. 6.2 You may only use the Services and/or access the Platforms (to the extent applicable) for the purposes set forth herein and in accordance with Applicable Rules. 6.3 You represent and warrant that the Advertiser Materials will (i) provide users with clear and conspicuous notice and disclosure about all its material functionality; (ii) obtain informed consent from users prior to download; and (iii) provide End Users an easytouse uninstall (if applicable). 6.4 The Advertiser Materials will comply with all Applicable Rules, IronSource Display Guidelines, and applicable industry selfregulations, which shall include without limitation, those of the Digital Advertising Alliance (“DAA”) (currently available at http://www.aboutads.info/principles ), and accordingly will include: (i) terms of service and privacy policy that clearly discloses the End Users’ data which is accessed, collected, used and/or shared by it, and identify any third party services used by it as well as accurately and specifically disclose via a posted privacy policy collection and use of information for advertising and other commercial purposes, including interest based advertising, by third parties; and (ii) to the extent applicable, provide a conspicuous manner in which an End User may optout of receiving ads or share his/her data (the “ Advertiser Terms ”). You acknowledge and agree that: (a) you are solely responsible for the Advertiser Terms and for obtaining valid End Users’ consent to them; (b) the Advertiser Terms must comply with all Applicable Rules; (c) you will make no representations, warranties or agreements on our behalf in the Advertiser Terms; and (d) the Advertiser Terms are an agreement between you and the End Users and we are not a party to that agreement. Furthermore, we will not be responsible for, nor have any liability with respect to: (i) any agreement between you and an End User or an End User’s breach of the Advertiser Terms; (ii) your failure to obtain valid End Users’ consent to the Advertiser Terms; and/or (iii) your failure to comply with the terms and conditions of the Advertiser Terms. 6.5 You shall be solely responsible for all actions initiated by you with respect to the Advertiser Materials. Notwithstanding anything to the contrary in this Agreement, we will have no liability or other responsibility with respect to the Advertiser Materials. 6.6 You will not nor will you allow any third party to engage in any of the following activities: 6.6.1 Circumvent, disable or otherwise interfere with any security related feature of the Platforms; 6.6.2 Upload, post, submit or otherwise transmit any Content that includes: (a) software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software; and/or (b) a code that is hidden or otherwise surreptitiously contained within the images, audio or video that is unrelated to the Content; 6.6.3 Interfere with or disrupt (or attempt to interfere with or disrupt) any, servers or networks connected to the Platforms or disobey any requirements, procedures, policies or regulations of networks connected to the Services; 6.6.4 Interfere with, circumvent or disable any securityrelated features that limit or prevent the copying of any third party Intellectual Property Right; 6.6.5 Attempt to probe, scan or test the vulnerability of the Platforms, any IronSource Display system or network, or breach, impair or circumvent any security or authentication measures protecting the Platforms; 6.6.6 Attempt to decipher, decompile, disassemble or reverse engineer any of the Platforms and/or any software used to provide the Services; 6.6.7 Attempt to access, search or metasearch the Platforms with any engine, software, tool, agent, device or mechanism other than as set forth herein; 6.6.8 Access, collect, store or use information about other users of the Services; and/or 5
6.6.9 Disclose to and/or share with IronSource Display any End Users’ personal information. You shall immediately comply with all IronSource Display’s instructions and requests with respect to the Platforms and/or Services including, compliance with the IronSource Display Guidelines and Applicable Rules and any additional supplemental guidelines and policies, as may be issued by us from time to time. 6.8 You acknowledge and agree that at any time during the Term, if in our reasonable judgment you engaged in any Forbidden Activity, then we may, at our sole discretion: (i) remove such Forbidden Activity from the Platforms (to the extent applicable); and/or (ii) take any measures needed to prevent or correct any Forbidden Activity. 6.9 Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that each instance of Forbidden Activity or a violation of your obligations under this Section 6 may cause us irreparable harm and therefore and without derogation from any other remedy available to us in equity or Applicable Rules, each such instance will entitle us to nonrefundable fine in an amount of a US$1,000 (the “ Agreed Penalty ”). 6.10 You hereby further covenant thatnone of the Advertiser Ad Units provided to us and none of the sites to which an End User is directed to following his/her click on any such Advertiser Ad Unit, will: (i) be revised in any manner and/or redirected during the Term hereof; (ii) when viewed or clicked on, cause the download or delivery of any software application, executable code, virus, or malicious or social engineering (phishing) code or features; and (ii) be obscene, deceptive or otherwise illegal. Payment. 7.1 Payment dates and related terms, including reporting and dispute resolution are set forth in the applicable IOs. 7.2 Each calendar month during the Term, we will provide you with: (i) an online report with respect to the Services provided by the IronSource Display Platform (the “ Online Reports ”), and if applicable, an offline report via email, with respect to the Services provided by the ThirdParty Platform(s) (the “Offline Reports”, and together with the Online Reports, the “ Reports ”). If you dispute the information detailed in any Online Report, you will provide us with a written notice (via email to our email address set forth in the IO) specifying the reasons for such dispute with as much detail as possible, by no later than seven (7) days as of receipt of the Online Report (the “ Dispute Notice ”). Following our receipt of a Dispute Notice, the parties will cooperate, in good faith, in order to resolve the applicable dispute. You agree that: (a) if no Dispute Notice is received by us with respect to an Online Report, then such Online Report will be considered as final and nonappealable proof for the purpose; and (b) receipt of a Dispute Notice and/or cooperation to resolve any dispute, will not affect and/or delay payment due to us hereunder. We cannot fully monitor Third Party Platform(s) and as a result, we are not and will not be responsible for the accuracy or availability of any Offline Reports. 7.3 Payment shall be made, subject to timely delivery of a proper invoice thirty (30) days after the end of the month for which such payment is due, in U.S. Dollars by electronic funds transfer. 7.4 All taxes, duties and charges imposed or that may be imposed by any applicable governmental agency in connection with this Agreement and each party’s performance hereunder, including sales, use, value added, and any other taxes, customs or import duties, will be borne by you, except for taxes based on our net income, gross revenue, or employment obligations. We will have the right to withhold or offset against any payments due to you hereunder any amounts due by you to us for previous excess payment or otherwise, and to withhold and deduct from any payment hereunder any and all applicable taxes and charges, if and to the extent determined by us to be required according to any applicable law, rule or regulation. Intellectual Property Rights. 8.1 Except as expressly granted in this Agreement, we retain all right, title and interest in and to the Platforms, the IronSource Display Ad Units and the IronSource Display Marks and any derivatives thereof, including any Intellectual Property Rights therein (together, the “ IronSource Display Property ”). All use of the IronSource Display Property will inure to our benefit and you will not: (i) contest, or assist others to contest our rights or interests in and to the IronSource Display Property or the validity of our rights in and to the IronSource Display Property and all applications, registrations or other legally recognized interests therein, or (ii) seek to register, record, obtain or attempt to pursue any Proprietary Rights or protections in or to the IronSource Display Property. All rights in and to the IronSource Display Property which are not expressly granted herein are reserved by us. 8.2 Except as expressly granted in this Agreement, you retain all right, title and interest in and to the Advertiser Materials, as applicable and any derivatives thereof, including any Proprietary Rights therein (together, the “ Advertiser Property ”). All use of the Advertiser Property shall inure to your benefit and we will not: (i) contest, or assist others to contest, your rights or interests in and to the Advertiser Property or the validity of your rights in and to the Advertiser Property and all applications, registrations or other legally recognized interests therein, or (ii) seek to register, record, obtain or attempt to pursue any Proprietary rights or 6.7
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protections in or to the Advertiser Property. All rights in the Advertiser Property which are not expressly granted herein are reserved by you. Neither party shall assert any Intellectual Property Rights in or to the other party’s Content, materials or any element, derivation, adaptation, variation or name thereof. Neither party shall have the right to remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on any Content or materials provided by the other party.
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Confidential Information. 9.1 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. 9.2 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. 9.3 Notwithstanding the foregoing, in the event that recipient is required by legal process, order of any court of competent jurisdiction, or any Applicable Rules to disclose any of disclosing party’s Confidential Information, then prior to any such disclosure, recipient will provide the disclosing party with a prompt written notice (if permitted by law) 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 advice of its counsel, and shall use all actions required to obtain confidential treatment for such Confidential Information. Further to the above, you acknowledge and agree that if we are required by legal process or applicable law to disclose information related to the you in connection with your use of the Services, we may disclose such information, without notice to you. 9.4 It is agreed that if recipient fails to abide by its obligations under this Section 9, 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. 9.5 The obligation to protect the disclosing party’s Confidential Information shall survive the termination of this Agreement for a period of three (3) years from the effective date of such termination, unless a longer period of protection is available under Applicable Rules. 10. Representations and Warranties. 10.1 Each of the parties hereby represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation thereof, 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 the Agreement; (c) it is duly organized and in good standing under the laws of its state of organization; and (d) the execution of the Agreement or the performance by it of its obligations under the 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. 10.2 We represent and warrant that during the term hereof: (i) we will use commercially reasonable efforts to provide the Services in a timely and professional manner; and (ii) the IronSource Display Platform will be wholly owned or validly and legally licensed by it or is in the public domain (as applicable) and will not infringe or violate any Intellectual Property Rights of any person. The Platforms and the Services are provided hereunder on an “ASIS” basis. Except as expressly provided in this Agreement and to the fullest extent allowable by law, we make no other warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, and fitness for a particular use or noninfringement and disclaim any such warranties. In addition, we do not represent or warrant that: (i) the Platforms and/or the Services will be error free or that any errors will be corrected; (ii) the operation of the Platforms and/or the Services will be uninterrupted; (iii) you will profit or derive any economic benefit from Advertiser’s use of the Services; or (iv) any specific content, service or feature will be made available to you via the Platforms and/or the Services, including with respect to “open source” or “free software” that may be included in the Platforms. We do not have any obligation to 9.
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monitor the Advertiser Materials and as a result, we are not and will not be responsible for the accuracy, completeness, appropriateness, legality or applicability of the Advertiser Materials. 10.3 You represent and warrant that during the term hereof: (i) you will only perform any and all activities and obligations you undertake in connection with this Agreement in accordance with all Applicable Rules, the IronSource Display Guidelines and Third Party Platform guidelines or policies; (ii) the Advertiser Materials will be wholly owned or validly and legally licensed to it or is in the public domain (as applicable) and will not infringe or violate any Intellectual Property Rights of any person or entity; (iii) you are solely responsible for the Advertiser Materials and any content, technology and/or functionality available therein or available therethrough and/or thereby; (iv) you have obtained, and deemed to have hereby granted to us, all rights necessary to allow us to store, audit, optimize, use and serve Ad Units and otherwise provide the Services hereunder; (v) you will only use the Platforms and/or the Services for the purposes and in the manner expressly permitted under this Agreement; (vi) you shall not bind us to any agreement or obligation or give any representation, warranty or guarantee with respect of IronSource Display, except for those that are specifically authorized by us in advance and in writing; and (vii) there is no action, suit or proceeding at law or in equity now pending or, to your knowledge, threatened by or against or affecting you which would substantially impair your right to carry on your business as contemplated herein or to enter into or perform your obligations under this Agreement, or which adversely affect your financial condition or operations. 11. Limitation of Liability. IN NO EVENT WILL WE, AND/OR OUR SUBSIDIARIES, SHAREHOLDERS, DIRECTORS, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND PERMITTED ASSIGNEES (COLLECTIVELY, THE “IRONSOURCE DISPLAY GROUP”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING TO ANY DAMAGES FOR THE USE OR INABILITY TO USE THE IRONSOURCE DISPLAY PLATFORM OR ANY PART THEREOF INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, DAMAGES RESULTING FROM EQUIPMENT OR NETWORK DOWNTIME OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR WITH RESPECT TO IRONSOURCE DISPLAY, THE PLATFORMS OR ANY PART THEREIN, THE SERVICES AND THE IRONSOURCE DISPLAY AD UNIT(S) OR USE OF, OR INABILITY TO USE THE PLATFORMS, THE SERVICES AND THE IRONSOURCE DISPLAY AD UNIT(S) UNDER ANY THEORY OF LIABILITY, INCLUDING FOR CONTRACT OR TORT (INCLUDING PRODUCT LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE IRONSOURCE DISPLAY GROUP WAS 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 SHALL THE IRONSOURCE DISPLAY GROUPS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED ONE THOUSAND U.S.DOLLARS (US$1,000). THE USE OF THE IRONSOURCE DISPLAY PLATFORM OR ANY PART THEREOF IS ENTIRELY AT YOUR OWN RISK, AND WE SHALL HAVE NO LIABILITY RELATING TO SUCH USE. 12. Indemnification. You agree to defend, indemnify and hold harmless the IronSource Display Group, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to reasonable attorney's fees) threatened, asserted or filed (collectively, “Claims”) brought or made by any person against the IronSource Display Group arising from: (i) your use of the IronSource Display Platform and any part thereof in any manner inconsistent with or in breach of this Agreement, including any damage of any sort, whether direct, indirect, special or consequential, that may be cause to any person as a result thereof; (ii) your breach or alleged breach of any warranty, representation or obligation made by you under this Agreement; (iii) your violation of any person’s rights, including End Users' right of privacy; and (iv) End Users’ use of the Advertiser’s Ad Unit or the Assets, as applicable. You shall promptly notify the IronSource Display Group of a Claim. You shall have full control and sole authority over the defense and settlement of a Claim; provided, however; that any settlement will be subject to our prior approval and provided further that you shall not assume the control of the defense of a Claim to the extent that we determine that (a) a Claim relates to our technology, (b) any relief other than monetary damages is sought against the us, or (c) there may be a conflict of interest between you and us in the conduct of the defense of a Claim, and in each such event the costs of defense will be considered “Claims” as defined above. The IronSource Display Group may join in the defense of a Claim with counsel of its choice at its own expense. 13. Term and Termination 8
13.1 This Agreement shall commence on the Effective Date set forth on the Insertion Order and shall continue in force and effect thereafter unless terminated by either party, in accordance with Section 13.2 below (the “ Term ”). 13.2 This Agreement may be terminated in accordance with any of the following provisions: 13.2.1 Either party may terminate this Agreement, for any reason and without liability, upon providing the other party with forty eight (48) hours’ prior written notice; 13.2.2 Either party may immediately terminate the Agreement: (a) if the other party breaches any of its obligations, representations and/or warranties set forth in this Agreement and fails to cure such breach within twenty four (24) hours from receipt of a written notice thereof; or (b) if the other party engages in any of the acts prohibited by the Agreement and fails to cure such breach within twenty four (24) hours from receipt of a written notice thereof. 13.2.3 We may immediately terminate this Agreement, by providing you with a written notice, if: (a) you engage in any action that, in our sole discretion, reflects poorly on IronSource Display or otherwise disparages or devalues IronSource Display's reputation or goodwill; (b) you have engaged in any activity set forth in the IronSource Display Guidelines or breached or breaches the terms of Section 6 on more than two separate occasions not withstanding a cure of each such occasion; (c) we determine, at our reasonable judgment, that we cannot continue providing the Platforms to you in accordance with the terms set forth herein; or (d) by written notice to you, if you become insolvent or makes 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 a trustee, administrator or receiver appointed for a material portion of your business or assets or have any petition under bankruptcy, insolvency or administration law filed against you, which petition is not dismissed is not dismissed within sixty (60) days of such filing. If you become subject to any of the events described in this Section 13.2.2, then you shall promptly notify us about the occurrence of such an event, in writing;; and 13.3 Upon termination of the Agreement, for any reason: (a) all rights and licenses granted herein shall terminate immediately; (b) your right to use the Platforms or any part thereof shall cease immediately; and (c) each party shall promptly return to the other party, or destroy and/or delete and certify the destruction of any and all of such party’s confidential information. 13.4 Following the termination of this Agreement, any provisions of this Agreement that in order to fulfill their purpose need to survive the termination of the Agreement (including Sections 1, 8, 9, 11, 12, 14 and this Section 13.4), shall survive. 13.5 You acknowledge and agree that: (a) we will not be liable to you or any other person or entity for damages resulting from the termination of this Agreement, and (b) following the termination of this Agreement, we will have no obligation to maintain any information stored in its data centers related to you or any other person or entity related to you, the Platforms and/or any Services or features provided herein or to provide any information to you or any other person. 14. General. 14.1 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; (d) any reference to “include” or “including” shall be read to mean “without limitation”; and (e) any reference to a statute, statutory provision or subordinate legislation shall be construed as referring to that statute, statutory provision or subordinate legislation as amended, modified, consolidated, reenacted or replaced and in force from time to time, whether before or after the date of this agreement. 14.2 This Agreement including its preamble and the IronSource Display Guidelines, embodie the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior agreements, understandings, commitments or arrangements, oral or written, with respect to the subject matter hereto. The caption headings in this Agreement are provided for convenience purpose only and shall not affect the construction or interpretation of this Agreement. 14.3 No modification or other amendment to this Agreement shall be valid unless reduced to writing and signed by both parties. 14.4 This Agreement shall be binding upon and inure to the benefit of each of the parties and their respective successors and assignees. This Agreement is not made for the benefit of any third party who is not a party hereto, and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under, or by reason of this Agreement.
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14.5 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. 14.6 The parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create any agency, partnership or jointventure 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. 14.7 Your use of the IronSource Display Platform and any part thereof is conditional on your acceptance of the terms and conditions of this Agreement. 14.8 If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise unenforceable, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions will not be affected and will continue in full force and effect. 14.9 Failure of by us to enforce any rights or to take action against you 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. 14.10 You may not assign and/or otherwise delegate any of your obligations and/or rights under this Agreement without our prior written consent. This Agreement shall be binding on and inure to the benefit of each of the parties and their respective successors and assignees. This Agreement is not made for the benefit of any third party who is not a party hereto, and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under or by reason of this Agreement. 14.11 This Agreement will be construed, controlled and governed by the laws of the State of New York, 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. All claims and disputes arising out of or in connection with this Agreement will be settled by arbitration in the State of New York. The arbitration shall be conducted on a confidential basis. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall conclude by no later than 45 days as of the date in which it has been initiated. Any such arbitration shall be conducted by one arbitrator who is experienced in internet commerce and advertising, appointed by the head of the New York Bar Association. The arbitration shall take place in New York. The arbitrator’s decision will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. Notwithstanding the foregoing, we may seek injunctive relief in any court of competent jurisdiction. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE IRONSOURCE DISPLAY PLATFORM OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AFTERWARDS. 14.12 Any notice or other communications required or permitted to be given hereunder or in connection herewith shall be in the English language and in writing, and may be given by facsimile, by email (with receipt confirmation), by personal delivery or by sending the same through the post via prepaid registered envelope addressed to the other party at its address set forth above or any other address provided by such party, in writing, to the other party for the purposes of this Section and any notice so given shall be deemed to have been served: (a) upon receipt when delivered personally; (b) upon confirmation of receipt when sent via facsimile or email; (c) within one (1) business days of being sent via overnight courier; or (d) within three (3) business days of being sent via registered or certified mail (postage prepaid). 15. Contact Us. If you have any questions (or comments) concerning the Agreement, you are most welcomed to contact us at:
[email protected]
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