Terms and Conditions

[Last Modified: January 1, 2020]

Those terms and conditions and any incorporated or referenced exhibit, annex, schedule or attachment (the "Agreement") will come into effect from the moment the corresponding Insertion Order ("IO") is signed, by and between Vidazoo Ltd., a corporation incorporated in the state of Israel, having its offices at 114 Igal Alon St, Tel Aviv, Israel, (hereinafter referred to as the "Vendor") and Client (hereinafter referred to as the "Client" or "Publisher"), which implies full acceptance of the Agreement. Each of Vendor and the Client shall be referred herein as a "Party" and collectively as the "Parties").

WHEREAS, Vendor is the developer, owner and operator of, inter alia, a technology, and a platform that enables hosting, serving and streaming video and/or ad content, ad management and serving to any desktop and/or mobile device with appropriate video capabilities (hereinafter referred to as "Platform");

WHEREAS, Client wishes to use the Platform, inter alia, by hosting and/or streaming video Content on behalf of Client and its publishers, according with the terms and conditions of this Agreement;

NOW, THEREFORE, in consideration of premises and of the mutual obligations hereunder set forth, the Parties hereto agree as follows:

1. Preamble, Annexes and Interpretation

1.1. The preamble to this Agreement and its annexes constitute an integral part hereof. 1.2. The headings of each section are presented for convenience purposes only and shall not be used in any manner for its interpretation.

2. License grant and Services

2.1. Subject to the terms of the Agreement, Vendor hereby grants to Client, during the Term and in the agreed upon geographic locations, a limited, non-exclusive, fully revocable, non-sublicensable, non-transferable license to access and use the Platform and respective services solely for the purpose of integrating the Platform into Client’s own website/s and enabling a video delivery within Client’s network of publishers (respectively, the "License" and "Client Sites"). The License and respective services will jointly be referred to as the "Services").

2.2. Except as provided under the License, no other right is being granted by Vendor, and Client shall not copy, lease, publish, modify, reverse engineer, change, sublicense to a third party or otherwise use the Platform in any manner that was not explicitly permitted in writing by Vendor.

2.3. Subject to Client’s compliance with the terms of this Agreement and following a validation process of Client by Vendor, Client may upload Content to the Platform and/or connect links to Content, via Vast/Vpaid tags / MRSS / RSS and XML feads from external sources such as URL's to the Platform during the Term. Content shall refer to any content delivered or otherwise provided by Client, whether available in the Client Sites (“Site Content”), uploaded into the Platform by Client ("Client Content") or otherwise delivered through it from Vendor’s sources (“Vendor’s Content”), (all together shall be defined as the “Delivered Content”), including video, tags, links, designs, look and feel, graphics, text, ads and any other lawful content that Vendor and/or Client wishes to upload, connect or link to the Platform for streaming in accordance with this Agreement.

2.4. Vendor may choose to remove, delete, and to not stream any Delivered Content for any or no reason, at its sole discretion. Further, if Vendor believe, in its sole discretion, or Vendor discover that the Delivered Content violates or may violate any applicable law, contain hateful content or infringe in any way third party intellectual property or privacy, Vendor will have the sole and absolute right to remove, delete and band such Delivered Content. Notwithstanding the above, Vendor has no obligation to monitor the Client Content and the responsibility and liability with respect to the Client Content and its compliance with the law is obliged on Client.

2.5. Vendor, via the Platform, will host the Delivered Content and will display it on sites or applications that are part of Client’s publishers network as designated by Client.

2.6. During the Term, Vendor will provide Client with an online access to view, track and extract performance data, as extracted by the Platform through its online real-time reporting features.

2.7. The Services by Vendor will include: 2.7.1. Formatting the Delivered Content in accordance with the agreed upon specifications and instructions of Client; 2.7.2. Optimizing all Delivered Content for distribution to online devices. 2.7.3. Hosting and maintaining the Delivered Content. 2.7.4. Monetizing Client’s advertising opportunities (“Placements”) and make each Placement available through Vendor’s Marketplace for advertisers, Ad Exchanges and advertising agencies that are engaged with the Marketplace that will be purchasing the Placements for displaying their video ads (“Market Ad(s)”).

2.8. Except as expressly stated in this Agreement, the Platform and the Services, including any respective feature, technology, update or upgrade, and their performance are provided by Vendor on an "as is", “as available” and on a “best efforts” basis, and Vendor does not guarantee, and explicitly disclaims any representation, undertaking or liability with respect to the Platform or Services, their availability, accuracy or error free.

3. Fees and Payments

3.1. The payment rates and terms for the Services will be a revenue-share to Client as established in the corresponding IO, out of the Net Revenue that was generated and actually received by Vendor as a result of Client’s Placements and Market Ads served and viewed by an individual human end user (“Ad Impression”). Client’s Revenue Share will be paid according to the corresponding IO, from the end of the applicable calendar month in which Client issued a valid invoice to Vendor, based on Vendor’s reports and counting which during the relevant month are only estimated non-final numbers that may be changed or adjusted by Vendor until becoming definitive within ten (10) days from the end of the relevant month. Invoices shall be sent to [email protected].

3.2 When Client wishes to connect its own demand (“Client’s Demand”) to the platform to serve Ads , Client will pay Vendor, on a monthly basis, the revenue-share as established in the corresponding IO, out of any Revenue derived from real time bidding integration that was generated from Client’s demand (“RTB Share”) and for all other integrations, Client will pay Vendor, on a monthly basis, the revenue-share as established in the corresponding IO, out of the Net Calculated Revenue that was generated from Client’s demand (“Other Integrations Share”), (all together shall be defined as “Vendor’s Share”). Net Calculated Revenue is the product of (A) the monthly average CPM (which is calculated by dividing the Net Revenue derived from Vendor's Marketplace by the total Ad Impressions from Vendor's Marketplace, as appears in Platform), multiplied by (B) Ad Impressions derived from Client’s Demand. Vendor’s Impression count and Revenue as appears in the Platform will be decisive and the only measurement for billing. Vendor’s Share will be deducted from Client’s Revenue Share payments. In the event that Vendor’s Share exceed Client’s Revenue Share, Vendor will invoice Publisher for that excess and such amounts will be due and payable within thirty (30) days.

3.3. If there is a difference between Vendor’s measurement and Client’s measurement, Client will notify Vendor and the Parties will attempt to resolve such discrepancy in good faith.

3.4 Vendor may use a third party to process the Client payment (the “Third-Party Payment Processor”). Client may be required to register with the Third-Party Payment Processor in order to receive the payment. Client agrees that the Third-Party Payment Processor will be appointed as an agent of Client for the limited purpose of processing payments on Client's behalf. Client authorizes Vendor to provide the Third-Party Payment Processor with payment instructions in accordance with this Section. As of the Effective Date of this Agreement, and unless modified in writing by Vendor with notice provided by email, the Third-Party Payment Processor shall be Tipalti Inc.

4. Data Protection and Privacy

4.1. The Parties acknowledge and agree, that in cases where the Platform is integrated, and the Services are provided in the EU or EEA jurisdictions, or at California, the EU General Data Protection Regulation (“GDPR”) or the California Consumer Privacy Act ("CCPA"' ) may apply. In such cases – as applicable – the Parties agree that Client is the Controller, or Business of Personal Data and Vendor is the Processor or Service Provider of such data, respectively. “Personal Data”, “Controller”, "Business", “Processor”, "Service Provider" and “Processing” shall have their respective definitions under the GDPR or any other applicable privacy law.

4.2. In such cases where GDPR applies, the Data Processing Agreement (“DPA”), available here, will constitute an integral part of this Agreement between the Parties.

4.3 In such cases where CCPA applies, CCPA Addendum , available here, will constitute an integral part of this Agreement between the Parties.

5. Intellectual Property Rights and Ownership

5.1. As between Vendor and Client, the Client Content and/or Site Content is and shall remain the sole property, in the responsibility and liability of Client and/or any applicable third party operating on client’s behalf. The Vendor Content, Platform and Services are and will remain, the sole and exclusive property of Vendor. Client shall not acquire any ownership rights in the Platform. Vendor shall not acquire ownership rights in the Client Content or Site Content. Any licenses for Content are strictly limited to the extent necessary to provide the Service.

5.2. Client recognizes and acknowledges that, except as explicitly provided in this Agreement, all of Vendor’s rights, including Intellectual Property rights, including without limitation, all updates and new versions, improvements and development of the Platform, are and shall remain the sole and exclusive property of Vendor, and that nothing in this Agreement shall constitute or be considered as constituting a transfer of, sell of ownership, or as the granting of any rights in, Vendor’s Intellectual Property or any part thereof. "Intellectual Property" shall refer to Vendor's rights in the Platform, technology, any related device, product, data, technical knowledge, software and software codes, methods, specifications, usage, protocol (including such BI, aggregated data and statistics extracted as part of the Platform’s operation) and other elements and know-how owned or used by Vendor or the Platform. Such rights may include copyrights, know-how, trade secrets, trademarks, logos, patents and patent applications, design processes, ideas, inventions, techniques, concepts, methods, computer programs, specifications and derivatives of such, whether any of such items are tangible or intangible, and all associated industrial or intellectual property and other rights therein or related thereto.

6. Representation and Warranties

6.1. Mutual Representations: Each Party hereby represents and warrants to the other Party that: (a) It has the full corporate right, power and authority to enter into this Agreement and to perform the acts and obligations required of it under this Agreement; (b) The execution of this Agreement and the performance thereof do not violate any rights of any third party, including any Intellectual Property Right, right for publicity, rights of privacy, data protection or violate any other agreement to which it is a party or by which it is bound; (c) This Agreement constitutes the legal, valid and binding obligation of such party; (d) Any and all activities and obligations it undertakes in connection with this Agreement will be performed in compliance with all applicable laws, rules, regulation and best industry standards.

6.2. Client’s Representations: Client hereby represents and warrants that: (a) Client, Client Sites and/or publisher network, the Content and any use of the Platform are and will remain compliant at all times with applicable laws, rules, regulations, policies and best industry standards (that may, from time to time, be introduced via Publisher Guidelines, available here), including without limitation any Intellectual Property law, Data Protection laws (including and particularly with Online Privacy Protection Act of 1998 (COPAA), ePrivacy and GDPR), Spam acts, and consumer protection laws (“Applicable Laws”); and (b) it has all lawful rights, licenses and permissions in and to the Client Sites and the Content (excluding content sourced by Vendor), including those required to integrate the Platform, and deliver the Content; and (c) where Client is not the direct owner of the Client Sites, it will contractually obligate publishers to meet the terms and conditions of this Agreement, with emphasize on Publisher Guidelines, Privacy Compliance and License terms, and will use best efforts to monitor compliance with such obligations; (d) it will not act, either directly or indirectly, by an act or omission, in any fraudulent, misleading, abusive or libelous means with respect to the Platform, Services or respective License;

6.3. Without derogating from the generality of any representation hereof, Client explicitly represents and undertakes to ensure that each and every one of Client Sites carries a visible and accessible links to a compliant “terms of service” (TOS), Privacy Policy (PP), Cookie Policy and cookie notification, as required by Applicable Laws. Such Terms of Service and Privacy Policy shall include disclosures about Client’s use of the Platform, operated and powered by Vendor, all in full compatibility and consistency with this Agreement, and Vendor’s privacy policy (available at https://www.vidazoo.com/privacy_policy).

7. Limitation of Liability

7.1. Except as provided in this Agreement, to the maximum extent permitted by Applicable Laws and except for Indemnifications, Intellectual Property and Confidentiality sections, neither party will be liable for any, indirect, incidental, punitive or consequential damage, losses or damages (“Losses”) arising out or of related to this Agreement, however caused, and under whatever cause of action or theory of liability even if a Party has been advised of the possibility of such Losses. Except for Losses arising out of Section ‎5 (Intellectual Property and Ownership), Section ‎7.2 (Indemnification) and Section ‎8 (Confidentiality) or the DPA, neither's Party's total aggregate liability for all claims arising out of or related to this Agreement shall exceed the amount paid by Vendor to Client under this Agreement for the 6 (six) months preceding to any such claim.

7.2. Each Party hereto shall indemnify and hold harmless the other Party, its employees, officers, directors, and third parties acting on its behalf from and against all liabilities, Losses, claims, penalties, damages, costs and expenses (including reasonable attorney’s fees), incurred as a result of third party claims resulting from or in connection with (a) any breach of this Agreement by such Party, willful misconduct or negligent act by such Party; (b) claims, representations or warranties made by such party in connection with the Content, or the Platform, or the use or misuse of the Platform, as applicable; (c) negligent handling of the Content by such Party in breach of the provisions of this Agreement.

8. Confidentiality

8.1. During the Term of this Agreement and for a period of three (3) years following the termination of the Agreement, each Party (a “Receiving Party”) shall retain in strict confidence and shall not use or disclose any Confidential Information of the other Party, without the prior written consent of the Disclosing Party and then only to the extent specified in such consent. The Receiving Party shall maintain the confidential or proprietary information of the Disclosing Party in confidence, with access only by those employees or subcontractors with a “need-to-know” and who have a need to access such information and who have entered appropriate confidentiality agreements.

8.2. “Confidential Information” is defined as any business and/or technical and/or financial information of a Party (the “Disclosing Party”), including any technology, charts, data, metrics, reports, formats, methods, techniques, codes, programs, components, lists or any other information that is designated in writing as "Confidential" or "Proprietary" (or by the use of words of similar import), or which, by its nature, can reasonably be regarded as confidential. Confidential Information shall not include information that (i) is at the time of its disclosure or afterwards becomes publicly available (not as a result of the Receiving Party’s failure), (ii) is lawfully received from a third party not bound under a similar confidential agreement with disclosing party, (iii) was already known by the recipient party at the time of disclosure by Disclosing Party, (iv) is at any time independently developed by the Receiving Party, or (v) is required by law, court order or an authority to be disclosed.

9. Term and Termination

9.1. This Agreement may be terminated by any Party to this Agreement for any reason, or for no reason, upon thirty (30) days’ notice.

9.2. This Agreement may be terminated by any Party to this agreement, upon seven (7) days' notice, in the event that (i) winding-up, receivership, dissolution or reorganization proceedings shall be commenced by the other Party; or (ii) the other Party shall substantially cease to carry on business; or (iii) a substantial part of the other Party’s assets shall be attached or levied by a court or another official agency; or (iv) the other Party shall fail to perform or shall be in breach of any of its obligations under this Agreement and such failure or breach shall not be rectified within fourteen (14) days after receiving a written notice specifying the failure or breach and demanding its cessation.

9.3. Without prejudice to any other right or remedy, Vendor may immediately suspend Client’s access to the Services or any portion thereof if Vendor believes that Client is using the Services in a manner that violates any Applicable Laws, or would otherwise damage Vendor’s customers, business, or reputation. In addition to the foregoing, Vendor may terminate the Agreement for low activity, without liability for such termination, upon the provision of twenty-four (24) hours prior notice to Client, if Client’s Minimum Monthly page views eligible for Video under this Agreement falls below the Minimum Monthly page views eligible for Video Threshold per month for two (2) consecutive months.

9.4. Upon termination of this Agreement: (1) Client shall cease any use of the Platform or related Services, APIs and accounts; (2) Sections ‎5 (Intellectual Property and Ownership), ‎7 (Limitation of Liability), ‎8 (Confidentiality) , ‎9 (Term and Termination) and ‎10 (Miscellaneous) of this Agreement, sections which expressly provide for their survival, as well as any outstanding payment obligations at the time of termination or expiration of this Agreement shall survive termination or expiration of this Agreement.

10. Miscellaneous

10.1. No employer-employee relationship shall exist between Client and Vendor and/or any of Vendor’s personnel, but rather Vendor shall act as an independent contractor of Client.

10.2. Each Party hereto agrees not to assign, transfer, or otherwise dispose of this Agreement in whole or in part to any third party without the prior written consent of the other Party, except in case of assignment by Vendor that is required as part of a merger or acquisition of the Platform or Vendor. This Agreement exhausts all that is agreed and stipulated between the Parties and replaces any understanding, representation, Agreement, whether in writing or not, or obligation given prior to its signing.

10.3. If any Party is unable, wholly or in part, because of Force Majeure to carry out any obligation under this Agreement, the obligation shall be suspended as far as it is affected by such Force Majeure during the continuance thereof. The Party concerned shall: (i) give the other Party prompt notice of such Force Majeure with reasonably full thereof and, insofar as known, the probable extent to which it will be unable to perform or be delayed in performing such obligation; and (ii) use reasonable diligence to remove such Force Majeure or its effects as quickly as possible. For the purpose of this section “Force Majeure” shall mean an act of God, war (declared and undeclared), army mobilization, blockade, revolution, riot, insurrection, civil commotion, sabotage, lightning, fire, earthquake, storm, flood, explosion, strike or other labor unrest, unavailability or inability to obtain or delay in availability of necessary materials, parts, equipment or transport, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the Party affected.

10.4. There shall be no validity to any modification in the provisions of this Agreement unless performed in writing and signed by the Parties.

10.5. The Parties are not partners, and their relationship will be one of supplier and purchaser. Neither Party will have any authority to obligate, or to otherwise act as agent for, the other Party for any purpose.

10.6. If any of the provisions of this Agreement are held by to be unenforceable by a court of competent jurisdiction, the remaining portions of the Agreement will remain in full force and effect.

10.7. This Agreement shall be governed by and construed in accordance with the laws of Israel without giving effect to its choice of law rules. All questions with respect to the construction hereof and the rights and liabilities of the Parties hereto shall be governed by the laws of Israel. The Parties hereby agree to the exclusive jurisdiction of the courts of Tel-Aviv, Israel.

10.8. Client hereby grants Vendor a non-transferable, nonexclusive right and license to use Client’s name or trademark, or directly or indirectly reference or identify Client, in Vendor's website, general marketing materials, advertising and case studies. Vendor may issue a press release regarding this Agreement subject to prior review and approval by Client, not to unreasonably withheld or delayed.