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This General Terms and Conditions (the: “Agreement”) is entered into by and between MediaExl and Publisher, as of the date MediaExl has signed the IO (the: “Effective Date”), for the mutual undertakings contained herein and other representations and warranties. The Parties agree to be legally bound as follows:
The publisher will promote and/or publish the products or services of MediaExl’s clients according to creative provided by MediaExl (the “Ads”), all according to the terms hereinafter (the “Services”).
1. Insertion Order and Inventory Availability
1.1 These General Terms and Conditions shall apply to any IO executed from time to time between MediaExl and the Publisher. 1.2 Acceptance of the IO and these Terms will be deemed the earlier of (i) written approval of the IO by Publisher, or (ii) the display of the first Ad impression by Publisher. Publisher will make its best efforts to notify MediaExl within 24 hours of receipt of an IO signed by MediaExl if the specified inventory is not available.
2. Ad Placement
2.1 Publisher will provide MediaExl at least 15 business days prior notification of any changes to the websites owned, operated or controlled by the Publisher and used for the purpose of the IO or on which the Publisher has contractual rights to serve the Ads (the “Sites”). 2.2 Should such a modification occur with or without notice, MediaExl may cancel the remainder of the affected placement without penalty within a 10-day notice period. In such case, MediaExl will not be charged for any affected Ads delivered after such modification. 2.3 The Publisher shall not place Ads adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language or falls within another category stated in the IO. 2.4 In addition the Publisher shall refrain from using the following techniques for the purpose of the Services: Incent traffic, incentivized placement, Ad-exchange, social traffic (Facebook, Twitter, etc…), spam, misleading traffic, Adult content, Push Notifications, App Discovery Traffic, Icon-Drop Traffic, Search engine traffic, Tool-bar traffic, Brand bidding, E-Mailings, Co-Reg, Own Creative (unless MediaExl’s approval), Redirect Traffic, invalid or duplicate leads, Gateway/Content Lock Traffic, Virtual Currency Traffic, Cash-Backs / GPT, SMS Traffic, P2P sites, File Sharing Sites, Content Locking, Jump pages, Pop up/under traffic (together with the restrictions of section 2.3 above, the “Restrictions”) 2.5 Publisher will use best efforts to comply with the Restrictions with respect to Ads that appear on Sites owned, operated or controlled by the Publisher. 2.6 For Ads shown on Sites owned, operated or controlled by third parties, the Publisher will obtain contractual representations from its participating network publishers that such publishers will comply with the Restrictions above on all sites and provide the remedy specified below to MediaExl with respect to violations of Restrictions. 2.7 To the extent that MediaExl and/ or any third party on its behalf, will detect any inappropriate traffic provided by Publisher (or anyone on its behalf) which contained any of the above Restrictions, according to which MediaExl’s Ads are displayed in connection (directly or indirectly) to such traffic, MediaExl shall be entitled to terminate this Agreement immediately, without any further notice to the Publisher. In addition, MediaExl will not pay to the Publisher in consideration for such traffic and the Publisher shall bear full responsibility regarding such traffic towards MediaExl, its clients or any other third party. 2.8 Without derogating from the aforementioned, MediaExl shall be entitled to inform the Publisher about such violation and may allow it to remove the Ads and refund any amount, according to MediaExl’s sole discretion, paid by it in consideration for such violated traffic. 2.9 If Advertising Materials provided by MediaExl are damaged, Publisher will use commercially reasonable efforts to notify MediaExl within two (2) business days of its receipt of such Advertising Materials. 2.10 Publisher will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without MediaExl’s approval. Publisher will use all Ads in strict compliance with these Terms and any written instructions provided on the IO. 2.11 Additionally without prior written permission, it is not permitted to advertise for MediaExl with any other media (self-) created by Publisher or otherwise acquired that was not provided directly from MediaExl and approved for these terms. 2.12 Furthermore the Publisher is not allowed to create and/or use all form of advertisement or any other kind of advertisement without prior written consent of MediaExl. 2.13 Publisher will not use MediaExl’s or its clients’ trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
3.1 Without prejudice to sections 3.1 and 3.2 above, all invoices pursuant to the IO will be sent no later than 90 days of delivery of all inventory delivered by Publisher (such as impressions clocks or other desired actions) (the “Deliverables”). Publisher acknowledges that failure by Publisher to send an invoice within such period may cause MediaExl to be contractually unable to collect payment from its advertiser-client. If Publisher sends the invoice after the 90-day period and MediaExl has not received the applicable funds from the advertiser-client or does not have the advertiser-client’s consent to dispense such funds, MediaExl will use commercially reasonable efforts to assist Publisher in collecting payment from the advertiser-client or obtaining advertiser-client’s consent to dispense funds. 3.2 Upon request from MediaExl, Publisher should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms. 3.3 MediaExl reserves the right to reduce any payments owed Publisher as a consequence of any offsets or non-payments taken by MediaExl’s clients with respect to the Services. However, MediaExl undertakes to make every reasonable effort to collect such payments from its clients on a timely basis. 3.4 All payment shall be made only with accordance to the Reports (as detailed in section 4 hereunder). For sums not cleared to MediaExl, Publisher agrees to cooperate with MediaExl and provide it all requested documents in order to understand such sums. MediaExl’s measurement shall suprseads in case of discrepancy.
4.1 MediaExl will provide Publisher with an access to MediaExl’s dashboard reporting tool, by providing it password to its account, in order to track all relevant information. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords) (“Reports”). 4.2 It is agreed that the Reports shall be final and shall bind the parties in any manner.
5. Fraudulent Impressions
Any method to artificially and/or fraudulently inflate the volume of impressions or clicks is strictly forbidden. Counts of impressions or clicks will be decided solely on the basis of reports generated by MediaExl. These prohibited methods include but are not limited to: framing an ad-banner’s click-through destination, auto-spawning of browsers, blind text links, running ‘spiders’ against the Publisher’s own website, automatic redirecting of users, pop-up windows or any other technique of generating automatic or fraudulent (as determined by MediaExl, acting reasonably, or based on industry practices) click-trough’s and/or impressions. Advertising Material may not be placed on a page which reloads automatically. Publisher may not require users to click on Advertising Material prior to entering a Web Site or any area therein or provide incentives of any nature to encourage or require users to click on Advertising Material. Publisher’s click-through’s of any link other than MediaExl’s Advertising Material, or use of any other means of artificially enhancing click results shall be a material breach of this Agreement, and upon such occurrence, MediaExl may terminate this Agreement effective upon delivery of notice. Such termination is at the sole discretion of MediaExl’s and is not in lieu of any other remedy available at law or equity. MediaExl ad server will be the official counter for determining the number of Advertising Material delivered under an applicable Order, and amounts payable under this Agreement.
6.1 Publisher will monitor Traffic of the Ads, and will notify MediaExl either electronically or in writing as soon as possible (and no later than 14 days before the applicable IO end date unless the length of the campaign is less than 14 days) if Publisher believes that an under-delivery is likely. 6.2 If actual traffic for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), MediaExl shall be granted a credit equal to the value of the under-delivered portion of the IO for which it was charged. 6.3 If MediaExl has made a cash prepayment to Publisher, specifically for the campaign IO for which under-delivery applies, then, MediaExl may elect to receive a refund for the under-delivery. 6.4 In a case of violating the 24 hours out clause by the publisher’s side, the publisher will be responsible of any unmonetized fees (requests sent by the publisher that did not convert to impressions) counted by MediaExl’s ad-network as a result of the violation, The 24 hours out clause also refers to any change or adjustment requested by MediaExl.
7.1 Either Party will not: (A) use or disclose any information included in the IO of the other Party, or connected with the performance of the Services, for any purpose other than performing under the IO; or (B) use or disclose any user private data in any manner other than in performing under the IO. 7.2 Publisher will require any third party or affiliate used in performance of the IO on behalf of Publisher to be bound by confidentiality and non-use obligations at least as restrictive as those on Publisher, unless otherwise set forth in the IO.
8.1 Publisher will defend, indemnify, and hold harmless MediaExl, its advertiser-client, and each of its affiliates and representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a third party and resulting from (i) Publisher’s alleged breach of its confidentiality obligations or of Publisher’s representations and warranties herein, (ii) Publisher’s display or delivery of any Ad in breach of Section 2, or (iii) Advertising Materials provided by Publisher for an Ad that: (A) violate any applicable law, regulation, judicial or aMediaExlnistrative action, or the right of a third party; or (B) are defamatory or obscene. 8.2 MediaExl will defend, indemnify, and hold harmless Publisher, from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a third party and resulting from MediaExl’s alleged breach of its confidentiality obligations or of MediaExl’s representations and warranties herein. 8.3 The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
9. Limitation of Liability
Excluding intentional misconduct, in no event will either party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages. The above limitation of liability shall not apply in the following events: (1) IP infrigment; (ii) Publiher’s have breached section 2 above.
10. Necessary Rights
Publisher represents and warrants that Publisher has all necessary permits, licenses, and clearances, including all intellectual property rights, to sell the traffic specified on the IO subject to these Terms.
11. Entire Agreement
This agreement reflects the sole agreement between the Parties relating to the subject matter and supersedes all prior understanding, writing, proposals, representations or communication, whether oral or written of either party. This agreement may only be amended by a written instrument executed by both parties.
Publisher shall not resell, assign, or transfer any of its rights or obligations hereunder, or transfer such rights or obligations without MediaExl’s prior written approval. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
Publisher shall keep proper records regarding the nature and origin of all traffic sold to MediaExl. MediaExl or its designee may inspect such records to verify reports. Any such inspection will be conducted in a manner that does not unreasonably interfere with Publisher’s business activities.
14. Term and Termination
The Term of this Agreement shall be as defined in the IO. In the event of a material breach by Publisher, MediaExl may terminate this Agreement immediately without a cure period. In the event of termination, no obligation or liability of MediaExl shall survive.
15. 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 jurisdiction of the Courts of the State of Israel.