1.1 “Action” shall include any of the following: view, click, engagement, registration, installation, or any other action, as applicable and agreed upon between the Parties, provided the foregoing was performed by an actual end user in the normal course of using a device.
1.2 “Ads” or “Advertisements” shall mean any promotional content, in whatever format (including without limitation text, graphics, video, audio, rich media and links), provided by Company or Company's upstream partners (“Advertisers”) to be served through or displayed on the Properties.
1.3 “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with such entity.
1.4 “Approved Transactions” shall mean an Action, excluding any Action which: (i) resulted from or on connection with Fraudulent Activity, as determined by Company in its sole discretion; (ii) was performed by the Publisher's employees, agents or contractors; or (iii) violates the Campaign Conditions.
1.5 “Campaign Conditions” means conditions and/or restrictions imposed by the Company for the promotion and distribution of the Ads, including but not limited to as specified in the Agreement or transmitted to the Publisher from time to time.
1.6 “Confidential Information” shall mean any non-public, proprietary, confidential and/or trade secret information of a party hereof, whether furnished before or after the Effective Date (as hereinafter defined), and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, research and development, formulas, programming, know-how, proprietary knowledge, technology and any related documentation, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications, financial and marketing information, business plans, business procedures, clients’ list, business partners or other information disclosed by one of the parties hereto (the “Disclosing Party“) to the other party (the “Receiving Party“) either directly or indirectly in writing, orally or by drawings. Confidential Information shall not, however, include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) is required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a protective order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality. Company's Confidential Information includes the terms and pricing contained herein, or on any IO.
1.7 "End User" means human Internet end user who interacts with the Advertising Material.
1.8 “Fraudulent Activity” shall mean (a) the display, promotion, distribution or interaction with Ads in any manner which engages with anything other than natural persons viewing actually displayed Ads in the normal course of using any device, including, without limitation; all as determined by Company in its sole discretion. Without limiting the foregoing, Fraudulent Activity shall include any of the following practices: (i) inclusion or counting of views or clicks: by a natural person who has been engaged for the purpose of viewing the Ads, whether exclusively or in conjunction with any other activities of that person (including, without limitation, employing any means to induce, encourage, incentivize or trick the End User into viewing or clicking on the Ads); by non-human visitors (such as bots); that are not actually visible to the human eye, discernible to human senses or perceived by a human being; (ii) masking or cloaking any URL, or employing any means to obscure the true source of traffic, or conceal conversions; (iii) generating automated, fraudulent or otherwise invalid impressions, inquiries, views, clicks or conversions, or artificially inflating impressions, inquiries, views, clicks, or conversions, or employing any misleading practices (such as, without limitation, repeated manual clicks or automatic page refreshes at intervals of less than 10 minutes between each); (iv) installing or transmitting Malicious Code. “Malicious Code” shall mean viruses, worms, malware, spyware, adware, time bombs, Trojan horses, drive-by download applications or other harmful or malicious code, files, scripts, agents or programs, including code that: (i) is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network, or (ii) materially interferes with or disrupts the End Users’ web or mobile navigation or intervenes with End Users’ control over the operating system, browser settings, browser functionality or webpage’s display.
1.9 "Insertion Order" or "IO" mean the Insertion Order entered into between Company and Publisher setting forth custom pricing and additional terms.
1.10 “Objectionable Content” shall mean content that promotes or contains links to content that is (i) pornographic, sexually explicit or obscene, (ii) harassing, threatening, abusive, inflammatory or racist, (iii) illegal, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) is misleading or deceptive; (vi) violates the Proprietary Rights, or the privacy, publicity, moral or any other right of any third party; (vii) offers or disseminates any counterfeit or fraudulent goods, or services, schemes, promotions or advice not permitted by law; (viii) promotes the use of drugs or drug paraphernalia, illegal substances or dangerous products; (ix) promotes online gambling, or (x) harmful to Company's or any other party’s systems and networks, or includes Malicious Code.
1.11 "Personal Data" means any information by which a natural person could be identified, directly, or indirectly by using reasonable means, including but not limited to: name, email, address, IP address and similar unique online identifiers (such as cookie IDs and advertiser IDs).
1.12 “Proprietary Rights” shall mean 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: marks, trademarks, service marks, trade names, trade dress and associated logos, domain names 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 Information; (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).
2.1 Subject to the Publisher's compliance with this Agreement or any additional requirements conveyed to Publisher by Company from time to time, Company hereby grants the Publisher a limited, non-sublicensable, non-transferable, royalty-free, non-exclusive license to display, transmit, and use the Ads solely as necessary for performing the Campaign Conditions during the Term.
2.2 Company reserves the right, in its sole discretion and without liability, to reject or remove any Property or placement, or the stop the delivery of Ads to any Property or placement, at any time at its sole discretion. Publisher acknowledges that any Campaign or part thereof may be canceled, paused, or suspended, whether by Company or its Advertisers, at any time and without notice to Publisher. Publisher hereby acknowledges that Company is providing the Ads (in part or in whole) as an intermediary between Advertisers and Publisher and as such Company shall not be held responsible or liable for any actions or omissions performed or omitted by any Advertisers or third parties (including with respect to the content of the Ads).
3. Publisher Restrictions
3.1 Publisher shall distribute and promote Advertisements solely through the Properties as set forth in the Insertion Order and in compliance with the Publisher Guidelines attached herein. Publisher acknowledges and agrees that at any time during the Term hereof, if in Company's reasonable judgment Publisher is not in compliance with the Agreement, including the Publisher Guidelines, without limitation from any other right or remedy available to Company under the Agreement or applicable laws, Company may, at its sole discretion: (i) terminate the Agreement, immediately; (ii) deduct, withhold, offset any payment to publisher due to such non-compliant activity; (iii) take any other measures needed to prevent or correct such non-compliant activity.
3.2 Publisher shall pre-approve with Company the placement of the Ads through the Properties.
3.3 The Publisher, shall comply with all applicable laws, regulations and Industry Standards and shall not: (i) use or place in any context on any web page that harms the good will or reputation of Company in any way, including, but not limited to by using Properties containing Prohibited Activity, illegal, misleading, harmful, abusive, harassing, liable, defamatory or other offensive materials including inappropriate pornographic, sexual, etc.; (ii) display pop ups, pop unders, expanding banners, buttons or any animations that may interfere with Advertisements, other ads on web pages; (iii) unduly interfere with End User’s control of his or her computer in other ways, such as installing additional software, overlaying or injecting code, redirecting browser activity and causing slow connection speeds and/or loss of Internet or functionality of other programs; (iv) re-distribute the Advertisements to a third party; and (v) involve, advertise or distribute the Advertisements or any related Content with incentivized traffic, p2p, adware, spywares, viruses or software or online scripts.
3.4 Publisher represents and warrants that: (i) it owns the Properties or otherwise has all requisite rights and licenses as needed to display the Ads, to perform its duties and obligations under this Agreement, and is duly qualified to enter into and provide all representations and warranties hereunder; (ii) the Properties do not and will not breach any third party rights including without limitation third party intellectual property rights and privacy rights; (iii) any and all activities and/or obligations it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules, regulations, best industry practice and the Publisher Guidelines; (iv) it has the requisite qualifications, knowledge, ability and skills and business contacts required to perform the distribution and display; (v) neither it nor any other third party on its behalf shall engage in Prohibited Activity (as determined by Company in its sole and reasonable discretion); (vi) it will be solely responsible for the advertisement, marketing activities, distribution, and Content used by it for the purpose of distributing the Advertising Material, and for any costs or expenses connected therewith. The Company reserves the right, subject to a prior notice, at its sole discretion to impose additional limitations or provide additional guidelines on the distribution and display of Advertising Material.
4.1 Each Party represents and warrants that (a) it is duly organized under applicable law and has sufficient authority to enter into these Terms and that, (b) the execution and performance under these Terms does not conflict with any contractual obligations such party has to any third party.
5. Intellectual Property
5.1 Publisher shall have all right, title and interest in its Properties and Publisher's trade names, trademarks, service marks, logos, or other brand features. Company retains all right, title and interest in the Ads, any Company website (including: kuuez.com and weare.kueez.com), mobile app, or any other service or deliverable provided by Company hereunder ("Company Properties"), including but not limited to their content, technology and any other Proprietary Rights contained therein and any derivative thereof, and any Kueez's trade names, trademarks, service marks, logos, or other brand features.
5.2 Nothing in these Terms shall be construed as providing Publisher a right to use any of Company's or its Affiliates’ or Advertisers' trade names, trademarks, service marks, logos, or other brand features (excluding the limited right and license to include such if contained in a creative of an Ad or another deliverable provided hereunder).
6.1 All payments due to Publisher, as specified in an applicable IO and this Agreement (“Consideration“), shall be solely calculated and based on Company's or its Advertisers' tracking systems and/or reports ("Calculations").
6.2 The Consideration shall be remitted to Publisher solely for Approved Transactions, and Company shall not be obligated to remit any Consideration, and shall be entitled to withhold any amount or demand a refund (in the event Consideration was already paid): (a) in connection with payments that were not fully collected by Company from its Advertisers, or fully approved by its Advertisers; or (b) if determined by Company, at its sole discretion, that Publisher has engaged in Fraudulent Activity, Objectionable Content, or was otherwise in breach of the Agreement.
6.3 Publisher acknowledges that the Calculations are subject to Publisher’s traffic quality, and compliance with the terms and conditions of the Agreement, thereby are subject to adjustments at all times. Any online Calculations are not guaranteed to be accurate and are subject to adjustments resulting from, among other things, a final accounting, deductions, traffic performance etc., all as determined by the Company's sole and reasonable discretion. In no case and for no reason Company shall be liable for any unavailability or inaccuracy, temporary or otherwise, of the Calculations. Company reserves the right to deduct, set off, claw back or charge back any amounts Publisher may owe to Company against any amounts payable or otherwise owing to Publisher.Publisher shall have the right to dispute the Calculations by submitting a written dispute notice to Company by no later than fifteen (15) days of receiving the final Calculations with respect to a billing period, in which case, the Parties will work together in good faith to settle such dispute. If no dispute notice is received by Company, within such fifteen (15) day period, then the Calculations will be considered final and non-appealable proof for the purpose of computing the Consideration.
6.4 Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher's account. Any bank fees and other commissions incurred by Company due to any error or omission of contact or payment information may be deducted by Company from any Consideration due to Publisher. It is hereby clarified that Publisher shall not be entitled to receive any additional payment except for the Consideration agreed upon by Company and as communicated to Publisher.
6.5 The Consideration shall be remitted to Publisher in USD, within the terms stated in the applicable IO, subject to issuance of invoice and approval by Company, to the account specified by the Publisher on the IO. All the fees and/or commissions related to the payment shall be at the exclusive charge of Publisher.
6.6 All payments due to Publisher under these Terms will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT, if applicable) (collectively, “Taxes“). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on Company's income. Company may be obligated by law to obtain tax information from Publisher and payments to Publisher may be withheld until Publisher provide this information or otherwise satisfy Company that Publisher is not a person from whom Company is required to obtain tax information or, if required by applicable law, may be subject to tax withholding.
6.7 Company reserves the right to make payments only when the monthly payment due to the Publisher exceeds USD200 (“Minimum Balance“). If the Consideration owed to Publisher does not exceed the Minimum Balance, Company shall have the right to roll over such payments to the following month until such time when the total payment owed to Publisher exceeds the Minimum Balance.
7. Data Protection
8.1 During the Term and thereafter, each Party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, during the Term and for a period of three (3) years thereafter to prevent the disclosure of the Disclosing Party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such Party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section.
8.2 Upon termination or expiration of these Terms, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s discretion) all materials containing Confidential Information.
9.1 Each Party shall defend, indemnify and hold harmless the other Party (and its officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees; collectively “Damages“)) which such Party may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party (“Claim“) arising from any breach of its representations or warranties.
9.2 Notwithstanding the foregoing, Publisher shall defend, indemnify and hold harmless Company (and its Affiliates, officers, directors and employees) from and against any Damages which Company may suffer in connection to any Claim that (a) the Properties or any part thereof contain or link to Objectionable Content, or (b) a Property or the Publisher is or was engaged in Fraudulent Activity, or (c) Publisher, or a Property, violates any End User's right to privacy or applicable data protection laws.
9.3 Procedure. The obligations of either Party to provide indemnification under these Terms will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party’s failure to notify the indemnifying party will not diminish the indemnifying party’s obligations under this Section except to the extent that the indemnifying party is materially prejudiced as a result of such failure), (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
10. Disclaimer of Warranties; Limitation of Liability
10.1 EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY'S SERVICES, INCLUDING THE ADS OR ANY ACCESS AND USAGE RIGHTS GRANTED BY COMPANY TO PUBLISHER WITH RESPECT TO COMPANY'S PLATFORM (COLLECTIVELY, THE "COMPANY SERVICES"), ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT GIVE ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR NONINFRINGEMENT WITH RESPECT TO THE COMPANY SERVICES OR THE CAMPAIGN. COMPANY DOES NOT WARRANT OR OTHERWISE REPRESENT THAT THE COMPANY SERVICES OR ANY DATA RELATED THERETO WILL BE FREE OF INTERRUPTIONS, ERRORS, BUGS, VIRUSES OR SECURITY PROBLEMS. COMPANY DOES NOT GUARANTY THE EFFECTIVENESS OF COMPANY SERVICES OR THE CAMPAIGN.
10.2 TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAWS, COMPANY AND ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, OR EMPLOYEES, SHALL NOT BE LIABLE TO PUBLISHER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, LOST REVENUES, LOST DATA, OR LOSS OF GOODWILL) INCURRED IN CONNECTION WITH THE AGREEMENT UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, CONTRACT OR TORT, WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY TO THE PUBLISHER FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE CONSIDERATION PAID TO PUBLISHER IN CONNECTION WITH THE CAMPAIGN DURING THE THREE (3) MONTHS DIRECTLY PRECEDING ANY CLAIM.
11. Term and Termination
11.1 These Terms shall commence on the date of both parties' signature herein, and shall continue until terminated by either Party pursuant to these Terms (“Term“).
11.2 Either Party may terminate these Terms for any reason at any time by providing a five (5) days' prior written notice to the other Party.
11.3 Notwithstanding the above, Company may terminate or suspend this IO at any time, if Company deems at its sole discretion that the Publisher has breached any provisions of this IO, without derogating from any other remedies that may be available to Company under applicable law.
11.4 Upon any termination or expiration of these Terms, the Campaign shall be considered non-operational, and all licenses and rights provided herein shall be revoked. It is hereby clarified that any Ads displayed after termination or expiration of these Terms shall not compensated for. In the event of any termination: (a) any outstanding amounts of Consideration will be paid to Publisher in accordance with Section 6 above, or as otherwise agreed upon in an applicable IO; (b) any outstanding debit balance shall be paid by Publisher within 7 business days after such termination.
11.5 Any obligations of the Parties that by their nature are intended to survive the termination or expiration of these Terms, shall survive any termination thereof. It is hereby clarified that any Ads displayed after the termination or expiration of this IO shall not be compensated for.
12. Entire Agreement
These Terms (including any addenda or annexes) and any amendments thereto, represent the entire and complete Terms between the Parties regarding the subject matter hereof and supersedes any and all other Terms between the Parties, whether written or oral, regarding the subject matter hereof. If any provision of this Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. Except as expressly set forth herein, this Terms may not be modified or amended except in a writing executed by both parties. These Terms may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
13.1 No agency, partnership, joint venture, or employment relationship is created as a result of these Terms, and neither Party has any authority of any kind to bind the other in any respect.
13.2 During the Term, Company may refer to Publisher as a customer of Company, including by displaying Publisher's name and logo on Company's website and other marketing materials.
13.3 The sections and paragraphs headings in these Terms are for convenience only and shall not affect their interpretation.
14. No Waiver
The failure of either Party to exercise any right provided for herein shall not be deemed a waiver of any further rights hereunder. All waivers must be in writing. A waiver of any default hereunder or of any of the terms and conditions of these Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
15.1 All notices and other communications under this Agreement shall be in writing and shall be deemed given when delivered by hand, overnight delivery service or by confirmed facsimile or email transmission or five (5) days after mailing, postage prepaid, by registered or certified mail, return receipt requested, to the known address, email address or fax or such other addresses as either Party shall specify in a written notice to the other.
15.2 Notwithstanding the foregoing, Company may provide Publisher with notices required hereunder by contacting Publisher at any email address Publisher provided, including in its registration information.
Publisher may not assign any of its rights or obligations under these Terms without the prior written consent of Company, except in the event of an assignment by Publisher to a purchaser of all or substantially all of the Publisher's assets or share capital, in which event the Publisher shall provide Company with written notice of the assignment. Assignment in violation of the foregoing shall be void.
17. Governing Law
These Terms shall be exclusively interpreted according to the laws of the State of Israel without regard to or application of conflict of law rules or principles. Any action or legal proceeding arising out of or relating to this Agreement shall be brought exclusively in the courts of Tel Aviv. Nothing in this section will be construed as prohibiting any Party from applying to a court for an injunctive relief with or without prior written notice to the other Party.
18. Force Majeure
Neither Party hereto shall be liable for any loss, damage, or penalty resulting from such Party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, labor strike, mechanical, electronic or communications failure or degradation.
By signing on an applicable IO, the Parties acknowledge that they have read and understood these Terms and agree to be legally bound by them.
Exhibit B – Publisher Guidelines
The Publisher and each of the Additional Offers shall comply with these Guidelines (the “Guidelines”), as applicable.
“Distribution” shall mean the promotion, advertise and offering of the Advertisements to the End User via the Inventory.
1. The Publisher shall ensure that its Properties are in compliance with all applicable laws and regulations ("Laws").
2. The Publisher shall be fully compliant with industry best standards and practices, including without limitation the standards and terms of advertising networks, affiliates networks, anti-virus and security guidelines, search engines and browsers ("Industry Standards").
3. Any action taken directly or indirectly by the Publisher with respect to the IO or any part thereof shall not and will not encourage any activity, use, promotion or endorsement of any content that Company, in its sole discretion, deems to be Objectionable Content or Fraudulent Activity.
4. The Publisher shall solely use the Properties provided by or approved under an applicable IO (except otherwise agreed in writing between the parties).
1. All pages of the Publisher Properties must host content (slideshows, infographic, articles, video, quizzes, etc, offering value for the reader) and have functioning navigation.
2. Ensure Ads are clearly distinguishable from other content.
3. Don’t place Ads where people are likely to accidentally click or interact with them (ex: placing ads where people randomly click or place their fingers, such as near buttons).
4. Ad must not be financially incentivized.
5. Websites sites must not display or refer to any content which includes:
a. adult/sexual content/pornography
b. hate/violence/discrimination (racial, ethnical or other)
c. defamatory, indecent, seditious, offensive, harmful content
d. content infringing on any person's right to privacy
e. gambling or other restricted or regulated content
f. fake news or fake information
g. weapons, ammunition, drugs or drug paraphernalia, alcohol
h. content targeted at minors under the age of 16 (or as otherwise determined in each End User's applicable jurisdiction of residence)
1. All Publishers are required to comply with Kueez's publisher technical guidelines that will be sent separately.
Publisher acknowledges and agrees that at any time during the term hereof, if in Company’s reasonable judgment the Publisher is not in compliance with the Guidelines, engages in any prohibited behavior under this Agreement or any other activity which has an adverse impact on the End Users or Company’s or Advertisers' reputation and branding, then Company may, at its sole discretion: (i) terminate the IO, immediately or (ii) take any measures needed in Company's reasonable discretion to prevent or correct such behavior.