ANY PURCHASE FROM OR SALE TO A.A DIGITAL MEDIA LTD LTD (“ALLASPECT, US, WE”) OF MEDIA (AS DEFINED BELOW) IS GOVERNED BY AND SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”). BY PLACING AN ORDER THAT REFERENCES THESE TERMS IT IS UNDERSTOOD THAT THE PARTY ENGAGING WITH ALLASPECT THEREUNDER (“YOU” OR “MEDIA PARTNER”) HAVE READ, UNDERSTOOD AND AGREED WITH THE PROVISIONS CONTAINED HEREIN. THESE TERMS ARE AN AGREEMENT BETWEEN YOU AND ALLASPECT. MEDIA PARTNER ALSO ACKNOWLEDGES THAT THESE TERMS AND CONDITIONS MAY BE UPDATED AT ANY TIME WITHOUT NOTICE TO MEDIA PARTNER, AND SUCH UPDATED TERMS SHALL GOVERN AND CONTROL ANY ORDERS EXECTUED FOLLOWING THE DATE OF UPDATE (AS PUBLISHED BY ALLASPECT). MEDIA PARTNER IS RESPONSIBLE FOR PERIODICALLY REVIEWING THESE TERMS AS PUBLISHED BY ALLASPECT PRIOR TO ANY EXECUTION OF AN ORDER BY MEDIA PARTNER HEREUNDER.
a) “Credentials” means any information, login details, ad-serving string or code or any other method of exercising Media rights sold under hereunder.
b) “Confidential Information” means any and all information disclosed, provided or made accessible by, or on behalf of, one Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether in writing, orally or in any other form which is not in the public domain, or regarding past, present, or future marketing and business plans, technical, financial or other proprietary or confidential information of the Disclosing Party, or which, given the nature of the information or material, or the circumstances surrounding the disclosure or provision, reasonably should be understood to be confidential or proprietary, as well as improvements, derivatives, upgrades, updates, and know-how related thereto. Confidential Information does not include information that: (i) is already or becomes generally known or available to the general public through no act or omission by the Receiving Party in breach of these Terms; (ii) is already known to the Receiving Party at the time of disclosure without breaching any confidentiality obligation, as such may be evidenced in the Receiving Party’s written records; (iii) is rightfully disclosed to the Receiving Party by a third party, who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; (iv) is independently developed by the Receiving Party without use of, reference to, any of the Confidential Information of the Disclosing Party, as such may be evidenced in the Receiving Party’s written records. Media and Credentials shall be deemed Confidential Information of the Media’s owner.
c) “Media” means any rights of advertising or otherwise serving advertising content on certain websites, as specified on a valid executed Order.
II. Description of Transaction. Media Partner will transact with Allaspect for the purchase or sale of Media (“Transactions”) to or from Allaspect (as applicable) as specified and set forth in a valid executed Order.
III. Purchase Orders. All Transaction shall be affected by full and complete execution of a purchase order, in the form provided by Allaspect to Media Partner referencing these Terms (the “Order”), which together with these Terms form a binding contract governing the Transactions.
IV. Representations and Warranties. Each of the Parties hereby represent and warrant that:
a) It has all right, power and authority to enter into these Terms and the Order and to fully perform its obligations hereunder and complete and effectuate the Transactions; and
b) These Terms constitute a legal, valid and binding obligation of Allaspect and Media Partner when referenced in a fully executed Order; and
c) There is no other restriction, limitation, contractual obligation or statutory obligation which prevents it from fulfilling its obligations under these Terms and applicable Order; and
d) the Party selling Media hereunder (the “Seller”) shall reasonably exercise all rights available to it to ensure that the Party purchasing Media hereunder (the “Purchaser”), receives, and is free to make use of, all rights Seller may have in the Media including without limitation, the use, license, distribution and sublicensing rights therein; and
e) Pursuant to the delivery of the Media in accordance herewith and subject to the Terms, Seller shall have no further rights in the Media including without limitation any right to affect, change, interfere, use, access, review, track and/or monitor the Media; and
f) Unless otherwise stated in a valid relevant Order, the Purchaser’s or any of its assigns’, affiliates’, or recipients’, use of and/or Seller’s interaction with, the Media purchased hereunder (to the extant applicable), shall not be limited in any manner, except that both Parties shall comply with all applicable relevant laws and regulations in their engagement hereunder, and in their use and conduct with respect to the Media.
V. Delivery. Unless specified otherwise in a valid Order the Seller shall deliver to the Purchaser the relevant Credentials required for Purchaser to fully make use, sublicense, distribute and employ the Media purchased hereunder, within 24 hours of execution of a relevant valid Order.
VI. Payment Terms.
a) In consideration for the sale of Media in the scope of any Transactions performed hereunder, Purchaser shall pay the Seller the amounts stated in a valid relevant Order (the “Consideration”).
b) Unless otherwise stated in a valid relevant Order, the Consideration shall be paid by Purchaser to Seller within 30 days of the end of calendar month in which Media has been delivered in accordance herewith, pursuant to a valid relevant Order and subject to provision of a proper invoice by Seller to Purchaser.
c) Any late payment shall accrue interest at a rate of one and a half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.
d) Unless otherwise stated in a valid relevant Order, all Consideration is stated in US Dollars and is exclusive of any and all taxes, costs, charges, customs and duties. Any VAT due under relevant applicable law in the scope of the Transactions and detailed in the Seller’s invoice, shall be borne by the Purchaser and added to the Consideration.
e) Any and all payments of Consideration to Seller hereunder shall be made by bank wire transfer to the Seller’s account details set forth in the Order.
VII. Term and Termination.
a) These Terms shall govern any engagement between the Parties pursuant to an Order referencing the Terms, until such Order’s full delivery and execution or its termination in accordance with the terms hereof.
b) Either Party may terminate a valid relevant Order, in the event the other Party has breached such Order or breached these Terms in respect of the same, and such breach has not been corrected or remedied (if remedy is possible) within 14 days of the terminating Party’s written notice of the breach to the other Party.
c) In the event Purchaser terminates an Order pursuant to Section b)above, Purchaser shall be entitled to receive a refund of any part of the Consideration paid for Media not used due to the termination and breach of the relevant Order. In the event Seller terminates an Order pursuant to Section b)above, Purchaser shall not be entitled to any refund.
VIII. Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN A VALID RELEVANT ORDER, NEITHER PARTY WARRANTS OR MAKES ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE MEDIA OR ANY PART THEREOF; THE MEDIA, (AND ANY PART THEREOF), INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, MATERIALS, REPORTS AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY, ADJECANCY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
IX. Limitation of Liability.
a) Aggregate Liability. EXCEPT FOR WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OR TO ANY FULLY EXECUTED ORDER (WHETHER IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE) EXCEED THE AGGREGATE CONSIDERATION DUE TO THE PARTIES UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION ARISES.
b) Limitation of Scope. EXCEPT FOR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT OR LOSS RESULTING FROM BUSINESS INTERRUPTION OR LOSS OF DATA, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY DELAY, LOSS OR DAMAGE DIRECTLY ATTRIBUTABLE TO ANY SERVICE, PRODUCT OR ACTION OF ANY PERSON OTHER THAN ITS OWN AND ITS EMPLOYEES.
a) Receiving Party shall not disclose any Confidential Information to any third party other than to its employees, agents and/or independent contractors to whom disclosure is reasonably required for the Purpose (as defined below), provided that such individuals and entities have agreed in writing, to keep such information confidential in the same or a substantially similar manner as provided for in these Terms. Receiving Party will not use any Confidential Information except as expressly permitted by, or as required to achieve the purposes of these Terms (the “Purpose“). Each Receiving Party will take reasonable security precautions to protect and safeguard the Confidential Information of the Disclosing Party against any unauthorized use, disclosure, transfer or publication, with at least the same degree of care and precaution as it uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care.
b) The Receiving Party shall notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or breach of confidentiality.
c) Notwithstanding anything to the contrary herein, the Receiving Party may disclose the Disclosing Party’s Confidential Information as required under applicable law or regulation; provided, however, that the Receiving Party must give the Disclosing Party prompt written notice immediately upon becoming aware of such required disclosure and use reasonable efforts to obtain a protective order against such disclosure, and in any event limit such disclosure to the scope, nature and degree deemed necessary by a competent counsel.
d) The Parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and agree that the non-breaching Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
e) The provisions of this Section X shall continue in force for a period of five (5) years following the delivery of Media under the latest Order entered into between the Parties under these Terms.
a) Either Party shall defend at its expense, and indemnify and hold harmless (the “Indemnifying Party“) the other Party and its officers, directors, shareholders, employees, affiliates and agents (the “Indemnified Party”) from and against all costs, damages, losses and expenses, including reasonable attorneys’ fees and other legal expenses, arising from any finally awarded third-party claim that: (i) in the event Purchaser is the Indemnifying Party, results solely from Indemnifying Party’s or its assigns’ use of the Media purchased hereunder not in compliance with the Terms and/or the relevant Order; or (ii) stems from the Indemnifying Party’s violation or alleged violation of any of its warranties and representations set forth in Section IV hereto.
b) As a condition to the defense and indemnity set forth above, the Indemnified Party shallgive the Indemnifying Party prompt notice of any such claim made against it and the Indemnifying Party shall be entitled, by written notice to such Indemnified Party, to assume sole control of the defenseof any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof (collectively, “Claim”), at its own expense, provided that (a) nosettlement, consent order or consent judgment which involves any placement of a financial burden or admission of any liability or wrongdoing, act or omission on the part of the Indemnified Party maybe agreed to by the Indemnifying Party without the Indemnified Party’s prior written consent; and (b) the Indemnifying Party shall keep the Indemnified Party informed of the status and progress of such Claim, the defense thereof and/or settlementnegotiations with respect thereto. The Indemnified Party shall give the Indemnifying Party all reasonable assistance, at Indemnifying Party’s cost and expense, necessary in connection with such defense. The Indemnified Party shall have the right to employ separate counsel in the defense of any such claim and participate in the defense thereof.
a) These Terms shall be governed by and construed in accordance with the laws of the State of Israel without reference to its conflict of law principles. Any and all controversies, claims or disputes arising out of, or related, to these Terms or the interpretation, performance or breach thereof, shall be brought before the exclusive jurisdiction of the competent courts located in Tel-Aviv, Israel.
b) These Terms together with the Orders executed by the Parties, constitute the entire agreement between the Parties and supersede any prior understandings or discussions relating to the subject matter of these Terms. These Terms may be amended, modified or supplemented only by a writing that is signed by duly authorized representatives of both parties. No failure or delay on the part of either Party in exercising any right or remedy under these Terms will operate as a waiver, nor will any single or partial exercise of any such right or remedy preclude any exercise of any other right or remedy.
c) Precedence. These Terms shall supersede any conflicting provision or term in a relevant valid Order, unless expressly stated otherwise hereunder or in such fully executed Order.
d) Each Party is an independent contractor with respect to the other Party hereunder. These Terms shall not be construed to: (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the Parties; or (ii) authorize any Party to enter into any commitment or agreement binding on the other Party.
e) If any portion of these Terms is determined to be or becomes unenforceable or illegal, then such portion shall be reformed or eliminated to the minimum extent necessary for these Terms to be enforceable and legal, and these Terms shall remain in effect in accordance with its provisions as modified by such reformation or elimination.
f) All notices and requests required or authorized hereunder, shall, expect where specifically provided otherwise, be given either in writing by personal delivery to the Party to whom notice is to be given, or sent by registered mail, addressed to the Party intended and its address set forth in these Terms or by email or facsimile. The date of approved transmission, in the case of email or facsimile or the date of deposit at the mail, in the case of registered mail, or the date of recorded delivery in the event of personnel delivery, shall be deemed to be the date of such notice.
g) Neither Party will issue any press releases or make any public statements regarding these Terms or any fully executed Order without the other Party’s prior written consent, however each Party shall be allowed to indicate the other Party as its customer or supplier (as applicable) in its website or commercial materials. Notwithstanding anything to the contrary hereunder, these Terms and any terms set forth in a fully executed Order are Allaspect’ Confidential Information and therefore will be treated as such.
h) Neither Party may set off any Consideration due hereunder.