Publisher Terms and Conditions
[Last Updated: February 16, 2020]
This Publisher Agreement (“Publisher Agreement”) is a legally binding and enforceable agreement between Display.io. Ltd. and its subsidiaries or affiliates (“Company” or “we”) and you, a publisher of mobile applications (either an individual or an entity), mobile network or distributor (“Publisher” or “you”). The Publisher is the owner or has legal rights in certain mobile apps (“App”), mobile sites, platforms, networks and any other digital assets or advertising placement which are offered to the public by it (collectively the “Inventory”) in which it wishes to implement the mobile advertising served by the Company, all as detailed herein.
Subject to the Agreement’s terms and conditions, the Publisher may access, download, implement, integrate the Company SDK and use the advertisement and materials provided thereof (“Ads” or “Advertisement”) licensed to Company by its third-party advertisers and/or service providers (“Advertiser(s)”); and (ii) the Publisher shall create an account on the Company platform enabling the Publisher to access the dashboard and view, monitor and obtain information regarding the Ads displayed, the way in which the Ads are displayed as well as the end user’s actions, payment information, etc. (“Publisher Account”) (collectively the “Services”).
The Service is available only to companies that are appropriately licensed and otherwise legally permitted to conduct business.
2. License Grant
3. Scope of Service
Company may, at its sole discretion: (a) determine the scope of the Services provided to the Publisher or otherwise, the features, settings or other tools which are available to the Publisher as part of the Services; (b) modify, correct, amend, update, enhance, improve, remove, replace or make any other changes to, or discontinue, temporarily or permanently, the Services; or (c) cease the operation of the Services or any part thereof, temporarily or permanently without liability to the Publisher. The Publisher further acknowledges and agrees that the Company does not have any obligation to monitor any materials or content available through the Services or App (including without limitations the Advertisement) and the Company has no obligation to provide support, maintenance, updates, upgrades, modifications, or new releases of the Services. EXCEPT AS PROVIDED HEREIN, THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED TO THE PUBLISHER, AN END USER OR ANY OTHER PERSON AS A RESULT OR IN CONNECTION WITH THE SERVICES OR ADVERTISEMENT. THE PUBLISHER’S USE OF THE SERVICES AND ADVERTISEMENT ARE ENTIRELY AT ITS OWN RISK.
4. License Restrictions
The Publisher shall not: (a) copy, execute or perform publicly, make available to the public, reduce to human readable form, emulate, sell, resell, lease, rent, lend, sub-license, make any commercial use, process, adapt, translate, modify, reproduce, map out, reverse engineer or create derivative works of the Services except as expressly agreed herein; (b) use the Service for any purpose other than as set forth herein; (c) distributing the App via an unauthorized App Store, further, during the registration Publisher shall provide the Company with applicable links to the Apps or Inventory; (d) interfere with or disrupt the operation of the Services, or the servers or networks that host or connect with the Services; (e) transfer or assign the Publisher’s Account password, even temporarily, to a third party; or (f) use the Service for any illegal, immoral, harmful or unauthorized purpose; (h) represent that the Publisher’s Inventory is endorsed by Company and may not use the Company name or any other trademarks or service marks of Company without prior written consent; and (i) use the Service in connection with any Prohibited Material or Fraudulent Activity. For the purpose of this Agreement “Prohibited Materials” means any material or content, contained in or linked to by Publisher Inventory that involves, facilitates, advocates or promotes one or more of the following: (a) false, misleading, deceptive, discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (b) libelous, defamatory, obscene, nudity, pornographic, adult content, sexually explicit or abusive activities; (c) illegal gambling; (d) illegal activities; (e) 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 (f) a conflict or violation of applicable law or any intellectual property rights or other rights of any person or entity; and “Fraudulent Activity” means any Inventory which is based upon or otherwise hosting, redirecting, linking, involving or facilitating any of the following: (a) Prohibited Materials; (b) malicious code; (c) hacking or pricking; (d) 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; (f) encouraging or incentivizing users to visit, click or use the Ads or any related or linked content for the purpose of generating Impressions in an unlawful manner; (g) automated or fraudulent tracking methods; (h) use or employ any misleading, fraudulent or inappropriate practices that may deceive the users; or (i) as otherwise determined by Company at it sole discretion.
Failure to comply with the provisions set forth above may result herein (at Company’s sole discretion) in the termination or suspension of access to the Service (or any part or feature thereof), without derogating from any other remedy the Company is entitled to under this Agreement or applicable law.
5. Company Data
6. Required End User Disclosures
When using the Services, the Publisher grants access to Company to process Company Data. Publisher further acknowledges that the Advertiser may process certain user data for the purpose of serving the Ads via the Company’s SDK. The Publisher acknowledges that neither the Company nor the Advertiser have a direct contractual relationship with end users and thus the Publisher undertakes to: (i) enter into an agreement with each end user, which will govern the relationship between Publisher and the end user (i.e., End User License Agreement “EULA”, Terms of Service and privacy policies), and which will include all required disclosures as defined by applicable laws(“App Terms”) Publisher is solely responsible for the content, compliance, legality and effectiveness of the App Terms and will not make any representations or warranties about the Company or the Services except as set forth herein; Publisher must also verify that the App Terms include a due disclosure about using third party services for Ads display and the use of tools and services such as the Services. (ii) prior to any data collection and processing through the Services, Publisher will obtain the end users consent (as applicable) to collect and transmit data to third parties, including the Company, as required by applicable laws and/or the App Store, by providing end-users with notices, updates and/or opt-out options; (iii) When applicable, and according to the definitions of Section 7 herein, Publisher shall include all disclosures and notices required to comply with Children Protection Regulation.
7. Children’s Online Privacy
The Company makes best efforts to comply with applicable Children’s Online Privacy regulation, including the US Children’s Online Privacy Protection Act of 1998 (COPPA), and minors data protection requirements in the EU (each, or jointly “Children Protection Regulation”). Publishers must comply with any and all applicable Children Protection Regulation, and shall actively instruct the Company as for the nature of its App(s) and the audience it targets. This includes, without limitation, the following requirements:
- Upon onboarding, Publisher shall report to Company and update on an ongoing basis, the nature of the App(s) and the audience it target(s) in accordance with the then-current categories provided in the Publisher Portal, as follows: Children/non-Children directed.
- Children/non-Children directed flags shall also be provided with any single Ad Request as defined under Applicable Children Regulation (i.e., Under 16 in the EU and under 13 in the US).
- In case the Ad Request is Children Directed, Publisher shall make sure to have a mechanism in place to avoid of: (i) personal information processing and (ii) presenting questionable content (as defined in the App Store’s terms, conditions and guidelines).
- Publisher shall follow the applicable documentation (available at https://www.display.io/documentation/childrens-online-privacy-law-compliance/) produced by Company with respect to Children Privacy Online.
In consideration for the Services, Company shall pay Publisher the fees as set forth in the IO and as reported solely by the Company or Advertiser. Notwithstanding the above, Company shall withhold payments and shall be entitled for a refund, in the event (a) payments that were not approved by Advertiser; (b) Advertiser did not complete the payment to Company; (c) the Company determined, at its sole discretion that the Impression, views, actions, etc. were derived or incentivized by Fraudulent Activity or Prohibited Materials; or (d) revenue generated in breach of this Agreement. It is hereby clarified that Publisher shall not be entitled to receive any additional payment except as set forth herein.
9. Representations and Warrants
Each of the Company and Publisher represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; and (c) the execution of the Agreement or the performance by it of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject.
Publisher hereby undertakes, represents and warrants that Publisher, the App and the Inventory are compliant with applicable laws, regulations, App Store policies and best industry standards. This includes, without limitation, consumer protection, fair competition, intellectual property, data privacy and data security regulation, including those apply with respect to children’s privacy online.
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 Publisher 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. Upon termination, by Company or by Publisher, for any reason, the License granted will immediately cease, and the Publisher must cease any use of the Services. All sections of this Agreement which by their nature are intended to survive termination, will survive termination or expiration for any reason.
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 PUBLISHER 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 PUBLISHER 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 PUBLISHER, A USER OR ANY OTHER PERSON AS A RESULT OR IN CONNECTION WITH THE SERVICES OR ADS. PUBLISHER’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 PUBLISHER FROM COMPANY DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE FIRST CLAIM TO ARISE UNDER THIS AGREEMENT.
Publisher shall indemnify, defend, and hense (including reasonable legal fees for attorneys) that the Company may suffer or incur as a result of: (a) any failure by Publisheold harmless the Company and the Company’s representatives from and against any claim, action, loss, liability, damage, penalty, cost or expr to comply with the terms of this Agreement; (b) any negligence or willful misconduct of Publisher; (c) any alleged or actual violations by Publisher 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 Publisher’s actions or the Inventory. Publisher 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 Publisher 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.
Publisher 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 time. 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.Publisher hereby grants the Company with the license to use Publisher’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.