[Last Updated: February 16, 2020]
This Advertiser Terms and Conditions (“Advertiser Agreement”) is a legally binding and enforceable agreement between Display.io. Ltd. and its subsidiaries or affiliates (“Company”, “Display.io” or “we”) and you, our third party partner (“Advertiser” or “you”). This Advertiser Agreement is hereby incorporated by reference into the Insertion Order (“IO”) executed between the parties and is an integral part thereof.
Subject to the terms herein, the Advertiser may (i) use the Display.io advertising and mobile monetization platform (“Platform”), for the purpose of displaying and delivering Advertiser’s advertising materials or content (“Advertisement” or “Ads”) (collectively the “Services”). The Service is available only to companies that are appropriately licensed and otherwise legally permitted to conduct business.
1. Scope of Service
The Company shall display the Advertisement within digital assets, mobile apps, games or mobile webpages (“Inventory”) made available through the Platform by Company’s third party publishers (“Publisher”) and subject to the Advertiser’s campaign instructions and limitations (i.e., budget, categories, countries, type of Ads, etc.) (collectively, the “Campaign Terms”). The Campaign Terms shall be submitted by Advertiser, and may be amended or updated, by a 72 hour prior written notice to the Company (email correspondence shall be sufficient) or through the Advertiser Account settings. The Advertiser acknowledges that due to technical limitations and the nature of the Services, the daily advertising cost may exceed the daily budget (if applicable) by up to 20% before the Advertisement are removed from the Inventory. Display.io has no obligation to provide support, maintenance, updates, upgrades or modifications to the Platform (including the Service) as well as monitor any of the content including the Ads or the Inventory. Further the Company has no control over the identity of end users’ exposed to the Advertisement, and the effectiveness of the campaign. The Company may, at its sole discretion: (a) determine the scope of Services, including its features, settings or other tools available through the Platform; (b) modify, upgrade or update or make any other changes to Platform or Services; (c) 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 Platform. The Advertiser acknowledges that using the Services may require additional permissions from the end user that may not originally require. The Advertiser acknowledges that the Company processes certain data from the end user or as provided by the Publisher, as detailed below, and it is the Advertiser’s responsibility to determine which Ads to serve the end user (i.e., targeted or contextual).
2. License Grant
Subject to the terms and conditions of this Agreement, the Advertiser hereby grants the Company and Publishers a royalty-free, worldwide right and license to use, reproduce, transmit, technically modify, distribute, present, display and otherwise use all or part of Advertisement, for the purpose of providing the Services, including any updates and modifications therein; and to use, present and display Advertiser’s brand name, trademark, icons and images, for use in the Company’s marketing materials, website or press releases (“License”). Advertiser shall provide the Company with all applicable documentation and creative necessary to provide the Services. Except as provided herein Advertiser retains all right and interest in and to the Advertisement. The Company retains the right and title in and to the Platform and any technology thereof.
3. License Restrictions
Advertiser, or any third party on its behalf, will not: (i) copy, execute or perform publicly, make available to the public, reduce to a human readable form, emulate, sell, resell, lease, rent, lend, sublicense, make any commercial use, process, adapt, translate, modify, reproduce, map out, reverse engineer, decompile, unlock, reverse compile, disassemble or create derivative works of the Services; or (ii) interfere with or disrupt the operation of the Services, or the servers or networks that host or connect with the Services.
4. Representation and Warranties
Each party represents and warrants to the other party that: (a) the IO (including this Agreement) constitutes a valid and legally binding obligation of it, enforceable against it in accordance with their terms; (b) it has the full corporate right, power and authority to enter into the IO (including this Agreement) and its obligations hereunder; (c) the execution of the IO (including this Agreement) does not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (d) each party agrees to comply with applicable laws, regulations, App Store(s)’ policies and Publisher’s instructions.
Advertiser hereby represents and warrants that Advertiser, the Ads and respective content are and will be compliant at all times with all applicable laws, regulation and best industry standards.
5. Advertiser Representations and Warranties
The Advertiser hereby undertakes, represents and warrants that: (a) it owns or has the valid legal right or license to use and distribute the Advertisement to the extent required hereunder, and the Advertisement do not and will not, infringe or violate any Intellectual Property right or any other third party’s rights; (b) it is solely responsible for the Advertisement and any content or technology that may be reached or linked via the Advertisement, including any rating, screening and monitoring activities required to comply with applicable laws and to filter Fraudulent Activities or Prohibited Content; (c) the Advertisement will comply with any and all applicable laws, regulations and industry best standards, including without limitations the Children’s Online Privacy Protection Act of 1998 (“COPPA”), the California Consumer Protection Act (“CCPA”), the California Online Privacy Protection Act (“CalOPPA”), the EU General Data Protection Regulation (“GDPR”) and CAN-SPAM Act of 2003 (“CAN-SPAM”) and any requirements or guidelines of applicable App Stores; (d) the Advertisement will not include any Prohibited Content or Fraudulent Activity. For the purpose of this Agreement “Prohibited Content” means any material or content, contained in or linked to from the Advertisement that involves, facilitates, advocates or promotes one or more of the following (without derogating from any further classification suggested by the applicable App Store policies and guidelines): (i) false, misleading, deceptive, discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (ii) libelous, defamatory, obscene, nudity, pornographic, adult content, sexually explicit or abusive activities; (iii) illegal gambling; (iv) illegal activities; (v) MP3, MPEG and/or copyrighted materials for download, sale or otherwise, in any case without the permission of the copyright owner or otherwise in violation of applicable law; and (vi) a conflict or violation of applicable law or any intellectual property rights or other rights of any person or entity; (vii) any link, text, creatives, scripts or files that include malicious code, activity, intent or virus, malware, adware, spyware or any other nadware intended to deceive or damage end users or devices; and “Fraudulent Activity” means any Advertisement which is based upon or otherwise hosting, redirecting, linking, involving or facilitating any of the following: (i) malicious code; (ii) hacking or pricking; (iii) phishing activity; (iv) serving to Apps that target children an Ad content that targets grownups or that is prohibited to be targeted at children, as defined by applicable law in each jurisdiction; (iv) any activity which interferes with the Service or any part thereof, including engaging with or the inclusion or counting of non-human audience or by any other manner of automation; (iv) use or employ any misleading, fraudulent or inappropriate practices that may deceive end users; or (vii) as otherwise determined by Company, or its respective Publisher, at it sole discretion. Advertiser agrees the Company shall have the right to reject or remove any Ads in its sole discretion.
Additionally, Advertiser acknowledges and agrees, that given the end user’s jurisdiction and session’s geo-location, certain additional rules may apply, and Advertiser represents and warrants that: (a) it has the technical capabilities to read and accept relevant signals with respect to the type and/or state of a given bid request, an end user or a Publisher; and (b) Advertiser will respect such signal and will act accordingly.
6. Company Data
7. Children’s Online Privacy
Without derogating from any of Advertiser’s obligations, representations and warranties, Advertiser undertakes to comply with the following requirements and documentation to ensure compliance with Children Protection Regulation:
- Advertiser must be able to accommodate and facilitate a Company flag about the nature of each App, as described in the applicable Documentation, and the very least, classifications of “Children”, “Everyone”, “Adults”; Advertiser must have a respective rating to its Ads creative.
- Where App is flagged as “Children”, Advertiser MUST meet all the following requirements:
- When applicable (Android), carry a Google Ad Network Certification and serve Ads provided by certified ad networks.
- To not display Ad content that is classified as “Adult” or Everyone”.
- To not display Questionable Content. “Questionable Content” is denied and includes any and all (i) Prohibited Material; (ii) Content that includes or facilitate Prohibited activity; (iii) Questionable content that is defined as such by the App Store or applicable regulation; (iv) Any content that is not designed to target children.
- Where App is flagged as “Everyone”, Advertisers MUST implement age screening measures, including the ability to accept such flag from Company, and respectively, make sure that ads shown to Children come exclusively from one of Google Play’s certified ad networks.
8. Reporting, Tracking & Dispute
Reporting and tracking shall be based on either Display.io’s or Advertiser’s numbers, reports, statistics and tracking, as agreed between the parties upon registration (“Reporting Party”). In the event of CPI and CPA campaigns the Advertiser is the Reporting Party, and it will provide Display.io with access to a password protected online account, from which it shall receive daily measurements or statistics regarding applicable Campaign (“Reports”). In the event such online account is unavailable, the Advertiser will provide Display.io with a daily email report with the above-mentioned information. Advertiser shall provide with the final Reports within five (5) calendar days from the end of each calendar month during the term of the Agreement. In the event the Reports were not provided by Advertiser (including final Reports and or daily or online installs post backs) as aforementioned, from any reason, the Advertiser shall reimburse Display.io with the amount equals to the average conversion rate in the last 3 days of the campaign multiplied by the amount of clicks wasted. In the event of CPC and CPM Campaigns, Display.io is the Reporting Party and Display.io shall provide Advertiser with daily measurements or statistics regarding applicable Campaign either through Advertiser’s account or by providing the Advertiser with Display.io’s report, as agreed between the Parties. Display.io shall provide Advertiser with the final Reports within five (5) calendar days from the end of each calendar month during the term of the IO. In the event of discrepancies, the disputing Party shall provide the other Party with a written notice specifying the reasons for the dispute, no later than thirty (30) calendar days from receipt of Report. Following the receipt of a dispute notice the Parties will cooperate, in good faith, in order to resolve any such dispute. In the event of disagreement with respect to any discrepancies, Display.io’s records shall prevail and be decisive. It is agreed that receipt of a dispute notice or cooperation to resolve any dispute will not affect or delay the payment of any consideration due to Display.io hereunder.
Advertiser is solely responsible for payment of any taxes resulting from the IO, other than Display.io’s income tax. If any such taxes are required to be withheld, Advertiser shall pay an amount to Display.io such that the net amount payable to Display.io after withholding of taxes shall equal the amount that would have been otherwise payable under the IO. In addition, the Advertiser shall be responsible for all income, sales, business, or any other such form of tax, fee, license or payment due in receipt of the transfer of the property or right to use such property under all circumstances.
10. Term and Termination
This Agreement will commence on the date in which both parties signed this Agreement and will continue in perpetuity unless it is terminated as set forth herein. This Agreement may be terminated by either party as set forth in the IO or by providing the other party with a 72 hours prior written notice. Without derogating from the above, at any time, the Company may terminate this Agreement immediately, suspend or terminate, temporarily or permanently limit, access to the Services, if Company deems, at its sole discretion, that the Advertiser has breached any provisions of this Agreement, without derogating from any other remedies that may be available to the Company under any applicable law. Further, Company may at any time, at its sole discretion, cease the operation of the Services or any part thereof, temporarily or permanently. The Company does not assume any responsibility with respect to, or in connection with the termination or suspension of the Agreement or the Services’ operation and loss of any data.
For the purpose of this Agreement, “Confidential Information” shall mean any non-public, proprietary, confidential or trade secret information of a party that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, client list, developments, business partners or other information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“) either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information shall not 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 or (iv) 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. During the term of this Agreement and for a period of one (1) years 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 of this Agreement and for a period of one (1) year thereafter to prevent the disclosure of the other 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. This Confidentiality section shall survive any termination or expiration of this Agreement as set forth herein.
12. Disclaimer of Warranties
THE SERVICES AND ADS ARE PROVIDED “AS-IS”. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, THE COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT OR THOSE ARISING IN THE COURSE OF OR CONNECTED TO ITS PERFORMANCE HEREUNDER, AND DISCLAIMS ANY SUCH WARRANTIES. IN ADDITION, COMPANY DOES NOT WARRANT THAT: (I) THE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED; (III) THE ADVERTISER WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM ITS USE OF THE SERVICES; OR (IV) ANY SPECIFIC CONTENT, SERVICE OR FEATURE WILL BE MADE AVAILABLE.
13. Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL COMPANY OR ITS SUBSIDIARIES, SHAREHOLDERS, DIRECTORS, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND PERMITTED ASSIGNEES (COLLECTIVELY, “COMPANY GROUP”) BE LIABLE TO ADVERTISER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING TO ANY DAMAGES FOR THE USE OR INABILITY TO USE THE SERVICES OR ANY PART THEREOF, LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, SYSTEM FAILURE OR COSTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR ANY PART THEREIN UNDER ANY THEORY OF LIABILITY, INCLUDING FOR CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE COMPANY GROUP WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED TO ADVERTISER, A USER OR ANY OTHER PERSON AS A RESULT OR IN CONNECTION WITH THE SERVICES OR ADS. ADVERTISER’S USE OF THE SERVICES AND ADS ARE ENTIRELY AT ITS OWN RISK. WITHOUT DEROGATING FROM THE FOREGOING, AND OTHER THAN IN CASES OF WILLFUL MISCONDUCT, COMPANY’S MAXIMUM AGGREGATE LIABILITY FOR ANY DAMAGES ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES RECEIVED BY COMPANY FROM ADVERTISER DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE FIRST CLAIM TO ARISE UNDER THIS AGREEMENT
Advertiser shall indemnify, defend, and hold harmless the Company and the Company’s representatives from and against any claim, action, loss, liability, damage, penalty, cost or expense (including reasonable legal fees for attorneys) that the Company may suffer or incur as a result of: (a) any failure by Advertiser to comply with the terms of this Agreement; (b) any negligence or willful misconduct of Advertiser; (c) any alleged or actual violations by Advertiser or the Inventory of any applicable law, regulation or rule, including App Store Terms; or (d) any infringement of third party rights, including intellectual property rights and privacy rights, resulting from Advertiser’s actions or the Inventory. Advertiser will fully cooperate with Company in the defense and settlement of any third party claim and at the Company’s demand will assume responsibility for the investigation, preparation, defense, trial and settlement of such claim, with the express provision that Advertiser will not settle the claim without the Company’s prior written explicit approval.
15. Dispute Resolution
This Agreement is governed by and construed in accordance with the laws of the State of Israel without giving effect to its conflict of laws provision. Any dispute arising in connection to this Agreement shall be brought exclusively before the applicable courts in Tel – Aviv, Israel and both parties hereby consent to such jurisdiction and venue. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded by the parties.
Advertiser may not assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void or a material breach of this Agreement. Company may assign this Agreement at all times; Neither party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder due to any condition beyond its reasonable control, including without limitation to, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war and governmental action; The parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other, nor shall either party have any right or authority to create any obligation on behalf of the other party; If any provision of the Agreement is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise unenforceable, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions will not be affected and will continue in full force and effect. The failure to require performance of any provision of the Agreement shall not affect a party’s right to require performance at any time thereafter; nor shall a waiver of a breach of any provision constitute a waiver of the provision itself or a waiver on another occasion; Advertiser hereby grants the Company with the license to use Advertiser’s name, the App’s name, icons and images, etc. solely for Company’s marketing purposes; This Agreement, including all exhibits and schedules attached thereto, sets forth the entire understanding between the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written agreements and discussions concerning the subject matter of this Agreement. The Agreement may be executed in counterparts (by facsimile or by electronic delivery in .PDF format or any other comparable format), each of which will be deemed to constitute an original copy hereof and all of which, when taken together, shall be deemed to constitute one and the same Agreement.