appTV Ltd, a company registered under the laws of the state of Israel which its offices located in 8th Hamenofim St. Herzlia ISRAEL (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 marketing customized advertisements and links provided by Advertiser and/or AppTV Ltd (“the Services”).
The Services shall be provided to Advertiser by appTV itself and/or by providing Advertiser access to the network (“AppTV Ltd Network“) of registered third party affiliates of appTV (“Affiliates“) and/or publishers of appTV (“Publishers“), and related technology and software of appTV (“AppTV Ltd Ad Server“), to market customized advertisements and links provided by Advertiser and/or appTV Ltd and/or by other online marketing means (“Ads” or “Creative” as further defined below).
Insertion Order: The Services shall be provided to Advertiser according to an Insertion Order (“IO“) attached hereto as an integral part of this agreement , including type of costing and pricing details (CPM, CPA etc), type of deliverable, price per deliverable, the dates during which a Creative is to be displayed and any other detail as may appTV 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.
(a) Advertiser agrees and acknowledges that appTV will develop create and design comprehensive material (the “Creative”) to perform marketing campaigns for the Advertiser, according to appTV’s sole and absolute discretion (the “Ad Campaign” or “Campaigns”). The Campaigns may include, according to appTV’s decision and discretion and without limitation, video ads, in video ads, banners, buttons, text-links, pop-ups, pop-unders, graphic files and similar online media landing pages and or any other form of advertising as may be suit for campaigns over the Internet (the “Ads”).
(b) appTV will and shall remain the sole owner of all and any right and specifically any intellectual property rights associated with all Creative and Ad Campaigns that has been developed and/or designed and/or created by appTV (other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Ad Campaigns Ltd Ads).
(c) The Advertiser is entitled to suggest appTV material for use in Ad Campaign to be displayed in the Campaigns (“Advertiser Ads”), however appTV is not obliged to use any material supplied by the Advertiser and for the avoidance of doubt appTV will perform the Campaigns and market Ad Campaigns without having any approval from Advertiser to the Creative and/or the Ad Campaign. Advertiser will provide Ads to appTV Ltd in accordance with the appTV Ltd Advertising Guidelines, as such are updated from time to time (“Ad Guidelines”).
(d) In connection with such Ad Campaigns, Advertiser shall pay appTV Ltd commissions depending on the number of clicks, impressions, sales/actions (“CPA”), applications and leads (“Leads”), and/or such other compensable activities generated on behalf of Advertiser all as set forth in the subject IO (collectively, “Actions”).
(e) appTV Ltd shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.
(f) The positioning, placement, frequency and other editorial decisions related to Ads shall be made by appTV Ltd and/or its Affiliates and Publishers, as applicable, in their respective sole discretion.
(g) Ad Codes. Unless otherwise stated in writing by appTV Ltd, each Ad used by appTV Ltd in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by appTV Ltd (“Ad Codes”). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by appTV Ltd to be used in connection with any and all Ads. All determinations made by appTV Ltd in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding and acceptable on Advertiser. Notwithstanding the foregoing, appTV Ltd’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party. Advertiser hereby undertakes that it will track appropriately any and all actions and leads generated from the Campaigns performed under this agreement.
The rates of actions shall be set forth in the applicable IO(s). appTV Ltd will invoice Advertiser immediately after the IO(s) will be 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 his known Email address or to any other Email address, upon 24 hours prior written notice). if payment is not made as agreed in the IO(s)’ appTV Ltd may, at its option, immediately terminate the Agreement and/or any applicable IO(s). interest will accrue on any past due amounts at the rate equal to lesser of one and one half percent (1.5%) per month or the maximum amount permitted by law. in addition, Advertiser shall be liable to appTV Ltd 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 all taxes, whether state or local, and related fees, costs and penalties incurred by appTV Ltd and/or any of its Publishers or Affiliates.
The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon 24 hours prior written notice. Upon termination or expiration of the Agreement for any reason: (a) Advertiser will pay appTV Ltd all amounts then due and owing as of the termination date within fifteen (15) days as set forth in Section 3 hereinabove; (b) any and all licenses and rights granted to either party in connection with the 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 any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
5. Warranty/Limitation of Liability.
The appTV ltd network, services, appTV ltd ads, ad guidelines, actions and ad codes provided by appTV ltd under the agreement and/or any applicable IO are supplied on an “as is” and “as available” basis. To the fullest extent of the law, appTV ltd makes no warranties (including implied warranties of purpose and non-infringement), guarantees, representations, express, implied, oral or otherwise. Without limiting the generality of the foregoing, appTV ltd does not warrant nor liable for any special incidental consequential nor punitive damages arising out of or related to this agreement, however caused under any theory of liability including but not limited to negligence, even if such party has been advised of the possibility of such damages. appTV ltd has no liability, whatsoever, to Advertiser or affiliate any third party, for any other party’s security methods and privacy protection procedures and appTV ltd disclaims any and all warranties, express and implied, that any other party’s security methods and privacy protection procedures will be uninterrupted or error-free. appTV ltd has no liability for Advertiser’s use of, or inability to use, the ad guidelines or applicable actions and appTV ltd disclaims any and all warranties, express and/or implied, that Advertiser’s use of the appTV ltd network, services, appTV ltd ads, ad guidelines and/or actions will be uninterrupted or error-free. appTV ltd makes no guarantees, and accepts no resulting liability, for failure to meet scheduled delivery dates. In no event shall appTV ltd be responsible for any consequential, appTV ltd will not be liable, or considered in breach of the agreement, on account of a delay or failure to perform under the agreement and/or any IO as a result of causes or conditions that are beyond appTV ltd’s control. Notwithstanding anything contained herein to the contrary, appTV ltd’s liability under any cause of action shall be limited to the amounts paid to appTV ltd by Advertiser during the prior three (3) month period pursuant to the agreement. appTV ltd shall not be held liable or responsible for any actions or inactions of publishers and/or affiliates.
Advertiser shall irrevocably defend, indemnify and hold appTV Ltd, its Publishers, Affiliates 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 breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein; (b) the Ads, Advertiser Products and/or Advertiser websites;
7. 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.
8. 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 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 for any damage and/or loss it 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 the appTV shall take all the necessary measures to meet the requirements of any applicable privacy and/or data protection law, and the Advertiser will not bear any responsibility in relation to these processing activities.
(a) Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the 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.
(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. Should a dispute arise under the terms of this Agreement, the prevailing party shall be entitled to recover its collection, processing, attorney, legal and court costs as well as its attorney’s fees and related costs incurred in any appeal thereof. Both parties agree to the specific jurisdiction of the Circuit Courts of Tel Aviv-Israel.
(c) Modification. The 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. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a 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 the 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; provided, however, that appTV Ltd acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).
(e) By approving this document, Advertiser undertakes not to solicit, interfere with or endeavor to entice away from appTV Ltd. or offer to employ or engage under a contract for services any of appTV Ltd.’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 maintain any business relations with appTV, and for an additional year after the termination of such business relations.
IN WITNESS WHEREOF, appTV Ltd and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives, which approved engaging in this agreement via Email.