Advertiser Agreement

appTV Ltd, a company registered under the laws of the State of Israel,  with offices located at 2 Benny Berman Street, Dogether Complex, 9th floor,  (hereinafter: “appTV“) and the advertiser (hereinafter: “Advertiser“), agree to the be bind by this agreement which defines the terms and conditions, in which The Advertiser will purchase advertising services from appTV.

In witness thereof it has been agreed between appTV and the Advertiser as follows:

  

  1. The Services

The advertising services provided by appTV to Advertiser according to this Agreement are promotion of advertisements and links provided by Advertiser and/or appTV (“Services”).

The Services shall be provided to Advertiser by appTV itself and/or by providing Advertiser access to the appTV’s marketplace (“Marketplace“) of registered Websites and Mobile Apps of appTV (“Publishers“), and related technology and software of appTV (“appTV’s Advertising Platform“), to promote advertisements and links provided by Advertiser and/or appTV and/or by other online marketing means (“Advertiser Materials” or  “Ads” or “Creative”).

Insertion Order: The Services  shall be provided to Advertiser according to an Insertion Order (“IO“) which is attached hereto and forms  an integral part of this Agreement, and which includes the agreed type of costing and pricing details [such as CPM  (i.e., Cost Per Thousand Impressions),  CPA (i.e., Cost Per Acquisition), CPI  (i.e., Cost Per Install),   CPC (i.e., Cost Per Click), CPV (i.e., Cost Per View), CPE (i.e., Cost Per Engagement) etc.], type of deliverable, price per deliverable, the dates during which a Creative is to be displayed and any other detail as  appTV may demand.

The terms of the IO shall supersede all contrary terms set forth in this Agreement, unless expressly set forth to the contrary.

In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to “Advertiser” shall refer jointly to Advertiser as well as the applicable underlying client.

  1. License Grant

Subject to the terms and conditions of the IO and these General Terms:

(a) Advertiser hereby grants appTV and Publishers a royalty-free, worldwide right and license to (i) use, reproduce, transmit, technically modify, distribute, present, display and otherwise use all or part of Advertiser Materials, for the purpose of providing the Services, including any updates and modifications therein; and (ii) use, present and display Advertiser’s brand name, trademark, icons and images, for use in appTV ‘s marketing materials and display on appTV’s Website or other media, press releases and posted client list during the IO term and thereafter.

Advertiser shall provide appTV with all applicable documentation and Creative necessary to provide the Services. appTV may modify Advertiser Materials if approved by Advertiser in writing (such approval may be granted per Advertiser Material, category of Advertiser Materials and/or per campaign (email will suffice for approval).

(b) appTV grants Advertiser a revocable, limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license, during the Term, to access and use the Services solely for the purpose of displaying and promoting Advertiser Materials subject to and in accordance with the terms and conditions hereof.

(c)     appTV retains the right, at its sole discretion, to: (a) determine the scope of the Services,  including its features, settings or other tools available through appTV ; (b) modify, upgrade or update or make any other changes to the Services; (c) in case the Advertiser Materials include prohibited content (Section 9) or Advertiser acts in contrary to any other the restrictions set forth hereunder, appTV has the right to cease the operation of the Services , temporarily or permanently without liability to the Advertiser; and (d) suspend, remove, restrict or disable Advertiser’s access to parts or all of the Services  and/or to appTV’s Advertising Platform  at any time at appTV’s sole discretion.

  1. Payment

The rates of actions shall be as set forth in the applicable IO(s). appTV will invoice Advertiser immediately after the IO(s) is signed. appTV will provide the Services only after receiving payment as agreed in the IO(s). Invoices shall be sent to Advertiser via Email (to its known Email address or to any other Email address provided thereby, upon 24 hours prior written notice). If payment is not made as agreed in the IO(s)’ appTV may, at its option, immediately terminate this Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and a half percent (1.5%) per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to appTV for all attorney’s fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by appTV and/or by any of its Publishers in relation herewith.

  1. Term/Termination

This Agreement shall continue for the term set forth in any underlying IO, provided that either Party may terminate this Agreement and/or any IO at any time, upon 48 hours prior written notice. Upon termination or expiration of this Agreement for any reason: (a) Advertiser will pay appTV all amounts then due and owing as of the termination date  as set forth in Section 3 hereinabove; (b) any and all licenses and rights granted to either Party in connection with this Agreement shall immediately cease and terminate; and (c) any and all Confidential Information or proprietary information of either Party that is in the other Party’s possession or control must be immediately returned or destroyed. Notwithstanding termination or expiration of this Agreement, any provisions of this Agreement that may reasonably be expected to survive termination or expiration of this Agreement, shall survive and remain in effect in accordance with their terms.

  1. Warranty/Limitation of Liability

THE APPTV MARKET-PLACE, SERVICES, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY APPTV UNDER THIS AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, APPTV MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APPTV DOES NOT WARRANT NOR IS LIABLE FOR ANY BUSINESS EXPENSES, LOSS OF PROFITS, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL NOR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR THE SERVICES, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, EVEN IF APPTV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  APPTV HAS NO LIABILITY WHATSOEVER TO ADVERTISER OR PUBLISHERS OR/AND ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND APPTV DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. APPTV HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND APPTV DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE APPTV NETWORK, SERVICES, APPTV ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. APPTV MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT WILL APPTV BE RESPONSIBLE, LIABLE OR CONSIDERED IN BREACH OF THIS AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THIS AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND APPTV’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, APPTV’S TOTAL LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO APPTV BY ADVERTISER PURSUANT TO THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD PRECEDING THE CLAIM.  APPTV SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR OMISSIONS OF PUBLISHERS.

  1. Indemnification

Advertiser shall, upon appTV’s first demand, irrevocably defend, indemnify and hold appTV, its Publishers, and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving: (a) Advertiser’s actions or omissions ; (b) Advertiser’s breach of any law, any third party’s intellectual property rights, this Agreement, any and all applicable IO(s) or any representation or warranty thereof contained therein; (b) the Ads, Advertiser products and/or Advertiser websites;

  1. Force Majeure

Other than with respect to payment obligations arising hereunder, neither Party will be liable, or be considered to be in breach of this Agreement, on account of such Party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence.

  1. Data Protection

Advertiser shall take all measures required to meet all the requirements of any applicable privacy and/or data protection law, regarding any personal information controlled by it (where “Control” means, inter alia, the ability to determine the purposes and means of the processing of any personal data). Under no circumstances shall appTV be liable for a breach of any applicable privacy or data protection law by the Advertiser, and the Advertiser shall indemnify appTV upon its first demand for any liability, damage,  loss and/or expense appTV suffers due to a breach of any applicable privacy and/or data protection law by the Advertiser. In case appTV processes data autonomously determining the purposes and means of the processing, then  appTV shall take all  necessary measures to meet the requirements of any applicable privacy and/or data protection law in relation to such processing activities.Without derogating from the foregoing and from any applicable law,  the terms of appTV’s  privacy policy as published  on its website shall also apply hereto.

  1. Restrictions and Prohibited Content for Advertising Creatives

Advertisers or Advertiser Materials must not promote any of the following content.

(a)   Ads making misleading or deceptive claims: IAB26-1 (Illegal Content);

(b)   Adult sexual content: IAB25-3 (Pornography, nudity, suggestive, possessions);

(c)   Copyrighted materials: IAB26-4 (Copyright Infringement);

(d)   Counterfeit goods: IAB26-4 (Copyright Infringement);

(e)   Drugs and drug paraphernalia: IAB26-1 (Illegal Content);

(f)    Endangered species products: IAB26-1 (Illegal Content);

(g)   Hate content, sensitive topics and violence: IAB25-5 (Hate Content), IAB25-2 (Extreme

Graphic/Explicit Violence);

(h)   Illegal products and services: IAB26-1 (Illegal Content);

(i)     Incentivized clicks and downloads: IAB25-7 (Incentivized);

(j)     Spyware and illegal hacking: IAB26-3 (Spyware/Malware);

(k)   Tobacco and tobacco accessories: IAB9-9 (Cigars);

(l)     P2P file-sharing apps, torrent or any apps that facilitate or promote copyright infringement: IAB26-4 (Copyright Infringement);

(m)  Unauthorized ticket sales: IAB26-1 (Illegal Content);

(n)   Weapons and weapons accessories: IAB26-1 (Illegal Content);

In addition and without derogating from the above, Advertiser accepts and undertakes to comply with the following restrictions with respect to its offers and Advertising Materials:

The landing page (URL) should lead only to the promoted offer, there shall be no rotating or redirecting landing pages. The landing pages must be static or alternatively lead to blank page.

There shall be no auto download LP.

  1. Intellectual-Property

appTV market-place, the Services and any part thereof (“appTV Property”) are solely proprietary to appTV and are its Intellectual Property. All rights related to the appTV Property are owned solely by appTV or its licensors and neither the IO nor these General Terms convey any title or ownership rights to Advertiser. Except as provided herein, appTV retains all right, title and interest in and to appTV Property, including, without limitation, any derivatives, improvements and modifications thereto, and all intellectual property rights therein. Advertiser shall abide by all copyright notices, information, and restrictions contained in any content accessed in connection with appTV Property. Advertiser grants appTV its approval to use Advertiser’s name, Advertiser Materials, icons and images, for use in appTV’s marketing and display on appTV website or other media, or for the purpose of providing the Services including, without limitations, by creating the appTV Creative, as well as appTV’s press releases and posted client list. Subject to the license grant to appTV in accordance with the IO and ‎these General Terms, Advertiser shall retain all right, title and interest in and to the Advertiser Materials.

  1. Miscellaneous

(a) Assignment. Neither Party may assign, transfer or delegate any of its rights or obligations under this Agreement or any IO without the prior express written consent of the other Party, and any attempts to do so shall be null and void; provided, however, that either Party may assign this Agreement, any IO or any portion hereof/thereof, to: (a) an acquirer of all or substantially all of such Party’s equity, business or assets; (b) a successor in interest whether by merger, reorganization or otherwise; or (c) any entity controlling or under common control with such Party; but provided that the other Party’s rights hereunder are preserved.

(b) Governing Laws and Disputes. This Agreement shall be deemed to have been made and entered into in the State of Israel, and the laws of the State of Israel shall govern its construction, validity and enforceability, without giving effect to its conflict of laws rules.   Both Parties agree to the specific jurisdiction of the Courts of Tel Aviv-Israel.

(c) Modification. This Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. This Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by an express written agreement that has been approved by an authorized representative of each Party. An approval of this Agreement and/or any modification to this Agreement via Email will be sufficient. To the extent that anything in or associated with any IO is in conflict or inconsistent with this Agreement, the IO shall take precedence.

(d) Relationship of the Parties. The Parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the Parties. Neither Party has the authority to bind the other, or incur any obligation on its behalf.

(e) By approving this Agreement, Advertiser undertakes not to solicit, interfere with or endeavor to entice away from appTV or offer to employ or engage under a contract for services any of appTV’s employees including, inter alia, any appTV’s employee working for the Advertiser. This undertaking shall remain in full force throughout the period in which Advertiser maintains any business relations with appTV, and for an additional year after the termination of such business relations.

IN WITNESS WHEREOF, appTV and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives, which approved engaging in this agreement via Email.