USER LICENSE AND SERVICE AGREEMENT
This User License and Service Agreement, including any related Order Form (if applicable) which by this reference is incorporated herein (this “Agreement”), is a binding agreement between AdPlay Technology Ltd. (“AdPlay”, “we” or “us”) and the person or entity using AdPlay’s services or Software hereunder (hereafter, the “Client” or “you”). This Agreement is dated as of the date you click the “I AGREE” button below (hereafter the “Effective Date”), and no further actions will be necessary by you or us to effectuate a binding Agreement. Each of you and us may be referred to herein as a “Party”.
ADPLAY PROVIDES ITS SERVICE AND USE OF ITS SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND AGREE TO COMPLY WITH THEM. BY CLICKING THE “I AGREE” BUTTON YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION AND ARE BOUND TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT AND DO NOT AGREE TO PROVIDE SERVICES OR LICENSE OUR SOFTWARE TO YOU AND YOU MUST NOT USE THE SERVICES OR OUR SOFTWARE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR AGREEMENT AND ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF CLICKAGY’S SOFTWARE.
The following Terms and Conditions are applicable to the relationship between you and us. Some terms are applicable regardless of the services your have selected to receive from AdPlay, and others are applicable only dependent upon the service(s) you have chosen to use. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you and AdPlay hereby agree as follows:
- General Terms and Conditions.
This following general terms and conditions are applicable to you regardless of the AdPlay Service you have selected: AdPlay Display, AdPlay Rich Media, AdPlay Video, AdPlay Social.
- Definitions. (a) “Additional Terms” means those additional terms and conditions which are applicable to the Services requested by you, which are attached detailed below in Sections B, C and D, which are incorporated by reference into this Agreement, as applicable to the Services you are requesting hereby. (b) “Affiliate” means, with respect to a Party, an entity that directly or indirectly controls, is controlled by or is under common control with such Party. (c) “Agreement” shall mean this Agreement and all Orders attached hereto (if any). (d) “Client” means a third party (g., an advertiser) on whose behalf you utilize the Service. (e) “Company Data” means your data, as derived from your use of the Services. (f) “Confidential Information” means any information that is disclosed, provided or made accessible by, or on behalf of, one Party to the other Party in connection with this Agreement, and which is identified as “confidential” or “proprietary” 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 (including any proprietary strategies, information, data, or reports used by us in performing Services), but does not include information or material that the recipient already knew or possessed, becomes public through no fault of the recipient, or was independently developed by the recipient without reference to the discloser’s confidential information. (g) “Fee” or “Fees” shall mean the amount that you agree to pay AdPlay in compensation for Services rendered as set forth herein. The Fee shall also include any additional expenses specified and agreed to in this Agreement or in any Order. (h) “Personally Identifiable Information” or “PII” means information that by itself can be used to identify a specific individual. PII includes a person’s name, address, phone number or email address. (i) “Law” means any applicable law, rule, or regulation (j) “Order(s)” shall mean any order for Services accepted by AdPlay to perform on behalf of you and setting forth the type of Services to be provided, any specific provisions associated with those Services, job description, the fees associated with the Services to be provided and any other miscellaneous information relevant to this Agreement. In the event of any conflict between the terms of this Agreement and the terms of an Order, the terms of this Agreement shall control. (k) “Service Policies” means any policies for use of the Services that are communicated to you, as may be modified from time to time. (l) “Services” shall mean the services provided by AdPlay for you as set forth in this Agreement or any Order, as further defined in the Additional Terms and Conditions applicable to such Service. (m) “Sites” means the digital properties (e.g., websites and applications) for which a Service is utilized.
- Engagement of Services. This Agreement contains the terms and conditions upon which you have engaged AdPlay to provide you with Services. The Services that you have requested of us will be determined by your usage of our assets or as otherwise indicated in any applicable Order, which may be updated by mutual agreement between you and us, from time to time. By your entry into this Agreement, you agree to abide by of the terms of this Agreement, including all applicable incorporated elements hereof.
- Term; Termination. This Agreement will be effective from the Effective Date and continue until its expiration, as determined by which Services are being provided and in the applicable Additional Terms, or is earlier terminated as permitted hereunder. Each Party may terminate this Agreement upon thirty (30) days advance notice to the other Party; provided, however, that any payment obligations that accrued prior to termination will remain due (and any monthly or recurring fees will not be prorated for any partial use). We may immediately suspend your use of the Services without notice if you breach any of your representations or material obligations hereunder, as reasonably determined by us, or have failed to pay any amount due or invoiced hereunder as of the applicable payment due date. Notwithstanding termination of this Agreement, any provisions of this Agreement that by their nature are intended to survive, will survive termination.
- Fees, Retainers and Payment; Remedies for Non-Payment.
4.1 Payments Generally. By acceptance of the Services, you agree to pay the Fees for such Services, according to the pricing information provided to you for the Services you select, and the selections you make based on budget and usage limitations. You agree to make prompt and full payment of any Fees upon any due date, and you further agree that you will remit all payments within thirty (30) days from the end of the month when charges are accrued, unless otherwise specified in writing. Unless otherwise specified in an Order, amounts owed for Services must be pre-paid, by wire transfer, check, “Automatic ACH” electronic funds transfer, or other means agreed to in writing. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information. You will promptly provide us with information reasonably required to complete our payment review process, which could impact the foregoing payment terms and conditions. Periodically, we may adjust your payment terms if your credit status or Service use changes by providing notice prior to the commencement of the billing period to which such adjusted payment terms apply. No fees owed to us will be prorated if you decide to cease use of the Services or terminate this Agreement prior to the end of a payment period. We may, at our sole expense, run business credit checks on you, by making use of any reputable business credit reporting vendor.
4.2 Other Fees. Other fees—such as Platform Fees and Analytics Fees—may be charged, in accordance with the Company’s standard billing practices, for optional services requested by you, in conformance with AdPlay’s current fee schedule.
4.3 Late Payments and Suspension. If any amount payable by you is not paid when due, then, without limiting any other rights which we may have as a result of such late payment, the amount unpaid shall, as a finance charge, bear interest until paid at a monthly rate. In addition, if you fail to pay fees due by the applicable payment due date and are not disputing them reasonably and in good faith, we may suspend Services, in whole or in part, upon notice to you.
4.4 Taxes. Charges for Services do not include any taxes or government charges levied by or due to any duly authorized taxing authority and you will pay any such taxes and government charges derived from or imposed on transactions through the Services, including sales, value-added, goods and services, use, transfer, withholding, privilege, excise and other taxes and duties.
- Representations and Obligations.
5.1 Our Representations and Obligations. We represent and warrant that we (i) have and will have all necessary rights and authority to enter into this Agreement and any Order, and provide Services to you, and (ii) will provide notice to you of material changes to any Service Policy (unless you opt out of such notice). We may invite you to try Service features that are expressly identified as “Beta”, “Alpha”, “Pre-Release”, or similar.
5.2 Your Representations and Obligations. You represent and warrant that you (i) have and will have all necessary rights and authority to enter into this Agreement and any Order and perform your obligations hereunder; and (ii) are and will be authorized to act on behalf of yourself and/or each of your Clients (and will be liable for their acts and omissions in connection with Services), if applicable. You will (i) be solely responsible for all use of Services; (ii) will use the Services in compliance with your other agreements; (iii) will not violate any applicable Laws or attempt to cause us to violate any such Laws; and (iv) comply with, and agree to be bound by, the Service Policies, which are incorporated into this Agreement by reference. Your Affiliates may receive Services under this Agreement; provided you will be liable for the acts and omissions of any such Affiliate.
- Confidentiality and Ownership of Data.
6.1 Confidentiality. Any Party receiving any Confidential Information may use Confidential Information only to exercise its rights and fulfill its obligations under this Agreement and must use reasonable care to protect Confidential Information. The receiving Party will not disclose Confidential Information, except (i) to employees, subcontractors, or professional advisers, who need to know it and who are obligated to keep it confidential, and (ii) as required by court order, Law or governmental or regulatory agency (after giving reasonable notice to the disclosing Party and using commercially reasonable efforts to provide the disclosing Party with the opportunity to seek a protective order at the disclosing Party’s expense, if permitted by applicable Law). The fact that you are a customer of AdPlay is not your Confidential Information. Subject to the use and disclosure rights in Section 6.2, Company Data is your Confidential Information.
You further agree that Company Data derived by AdPlay from AdPlay’s performance of the Services or input by you may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules. The results of such analysis may be used by AdPlay for any lawful purpose.
In addition to, and in no way limiting the foregoing, you expressly acknowledge and agree that AdPlay may capture and encrypt/one-way-hash any e-mail addresses which constitute Company Data, for the purposes of facilitating cross-device linking, onboarding, or any other technology that leverages the cookie to hashed e-mail link, including, but not limited to, delivering e-mail hashes to third parties for marketing or analytics, based on the cookie behaviors observed on their website, and any such disclosure shall not be deemed a violation of this general treatment of your data discussed in this Section 6.2.
6.3 Proprietary Rights. Each Party owns and retains all right, title and interest in and to all of its intellectual property, and no rights are granted to us or you in the other’s intellectual property except as expressly set forth in this Agreement. For us, this includes all aspects of our technology and Services, including any software or applications developed, created, or licensed by us (or on our behalf). You grant to us a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into the Services any suggestion, input, enhancement request, recommendation, correction, specification, or other feedback provided by you or your clients relating to the operation of the Services.
- Publicity; Press Releases. Each Party grants the other Party the limited right to use other Party’s name and logo on customer lists and informational or promotional materials. Neither Party will issue any public communications concerning this relationship without the prior written consent of the other Party.
- Disclaimers and Limitations of Liability. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CLICKAGY EXPRESSLY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES TO BE RENDERED HEREUNDER OR THE RESULTS TO BE OBTAINED FROM THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, PARTICULARLY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR BREACHES RELATING TO WILLFUL MISCONDUCT, CONFIDENTIAL INFORMATION OR NON-PAYMENT, EACH PARTY ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL COMPANY OR CLIENT OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM DELAY, LOSS OF PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF CONTENT, INTERRUPTION OF BUSINESS OR LOSS OF GOODWILL, WHICH MAY ARISE IN CONNECTION WITH OR PERTAINING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBLITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING UNDER ANY THEORY OF LAW (INCLUDING TORT OR OTHER THEORY). EXCEPT FOR BREACHES RELATING TO WILLFUL MISCONDUCT, CONFIDENTIAL INFORMATION OR NON-PAYMENT, IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY CLAIM ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID PURSUANT TO THE APPLICABLE SERVICES FROM WHICH THE CLAIM AROSE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY SHALL SURVIVE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF AN EXCLUSIVE REMEDY.
- Indemnification. Each Party (in such capacity, the “Indemnifying Party”) will defend, indemnify and hold harmless the other Party and its officers, directors, employees, and agents (each, an “Indemnified Party”) from all third-party claims or liabilities (including reasonable outside attorneys’ fees and disbursements) arising out of or related to the Indemnifying Party’s (i) breach or alleged breach of this Agreement, or (ii) infringement or misappropriation of a third party’s patent, trademark, trade secret or copyright in connection with (a) with respect to us, the software and other technology owned by us that we use to provide the Services hereunder, and (b) with respect to you, the software, creative, technology, data, or other materials you provide or use with the Services (and, with respect to customers, Sites (containing Ad Inventory)) (“Company Materials”) (the indemnification obligation of each Party described in this clause (ii), the “IP Infringement Obligation”). The previous sentence states the sole liability of the Indemnifying Party, and the sole remedy of the Indemnified Party, with respect to any third-party claim arising out of the Indemnifying Party’s breach of this Agreement or intellectual property infringement or misappropriation.
The Indemnified Party must (i) promptly notify the Indemnifying Party in writing of the any third-party claim (provided that failure to promptly notify will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been damaged by the failure), (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter, and (iii) give the Indemnifying Party primary control of the defense of the matter and negotiations for its settlement. The Indemnified Party may at its expense join in the defense with counsel of its choice. The Indemnifying Party may enter into a settlement only if it (A) involves only the payment of money damages by the Indemnifying Party, and (B) includes a complete release of liability in favor of the Indemnified Party; any other settlement will be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed).
Our IP Infringement Obligation will not apply to claims to the extent arising from (i) your use of the Service in violation of this Agreement; (ii) the Company Materials’ infringement or misappropriation of a third party’s patent, trademark, trade secret or copyright; or (iii) the combination, operation or use of the Service with any product or service not provided by us. Your IP Infringement Obligation will not apply to claims to the extent arising from (i) our provision of the Service in violation of this Agreement; or (ii) the Services’ infringement or misappropriation of a third party’s patent, trademark, trade secret or copyright. If a Service becomes, or in our reasonable opinion is likely to become, the subject of an intellectual property infringement claim, then we will promptly notify you and, at our sole option and expense, may either: (x) procure the right to continue providing the Service as contemplated by this Agreement; (y) modify the Service to render it non‑infringing; or (z) replace the Service with a functionally equivalent, non‑infringing service. If none of the foregoing options is commercially practicable, then each Party will have the right to terminate this Agreement with respect to the infringing Service.
- Service Failures. AdPlay does not guarantee, and shall have no liability for, any Services downtime, including, without limitation, any downtime (a) caused by failures of or previously scheduled maintenance to AdPlay’s equipment or servers, (b) caused by outages to any public Internet backbones, networks or servers; (c) caused by any failures of your equipment, systems or local access services; or (d) relating to events beyond AdPlay’s control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where AdPlay or your servers are located or co-located.
- Miscellaneous. (i) All notices under this Agreement must be in writing (which term shall include notices by email) and will be deemed given when delivered. All notices to AdPlay shall be sent to [email protected], and all notices to you shall be emailed to you at an email address you have provided to us, or as provided in clause (v), with respect to changes to this Agreement. (ii) Neither Party may assign or transfer any part of this Agreement without the written consent of the other Party, except that this Agreement may be assigned without consent (x) to a person or entity who acquires, by sale, merger or otherwise, all or substantially all of the assigning Party’s assets, equity ownership or business, or (y) by any AdPlay entity to its Affiliate(s). Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Any attempted assignment in violation of this provision will be void and of no effect. (iii) This Agreement is the Parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject, including any exhibits for use of any Services executed prior to the Effective Date of this Agreement. (iv) We reserve the right to change this Agreement or Additional Terms at any time, on thirty (30) days advance notice to you, provided that no changes will be applied retroactively, and material changes to the Services to be rendered may only be made with your permission. We will give you notice of the changes by emailing you at an email address you have provided. Any changes made for legal reasons will be effective immediately upon notice. (v) If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. (vi) Each Party is permitted to use subcontractors in connection with this Agreement, but is liable for their acts and omissions. (vii) The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture. (viii) Neither Party will be liable for any acts or omissions resulting from circumstances or causes beyond its reasonable control. Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement, we do not guarantee any Service will be operable at all times or during any down time caused by outages to any public Internet backbones, networks or servers, any failures of equipment, systems or local access services, or for previously scheduled maintenance. (ix) You may not resell any Service, it being understood and agreed that your use of Services hereunder on behalf of Clients will not be deemed a breach of this clause. (x) The Parties may execute this Agreement in counterparts, including facsimile, PDF and other electronic copies, which taken together will constitute one instrument. (xi) Either Party’s waiver of any breach of any provision of this Agreement does not waive any other breach. Either Party’s failure to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such Party’s right to demand strict performance in the future.
- Additional Terms and Conditions – AdPlay DSP (Advertising Trading Desk Services)
The following additional terms and conditions (these “Additional Terms”) accompany and supplement the Agreement between AdPlay and you, if you have selected AdPlay DSP as one of the Services to be provided to you. In the event of any conflict between these Additional Terms and the general terms above, these Additional Terms shall control.
- Additional Definitions. The following definitions shall be applicable to the Services covered by these specific Additional Terms, which shall be applied in addition to definitions listed in the general terms above. (a) “Ad Inventory” means digital advertising inventory, including display, mobile, paid search, application and/or widget-based advertising inventory. (b) “Advertising Transaction” means, as applicable, the actual or attempted purchase or sale of Ad Inventory, or the serving of Creatives to Ad Inventory, using the Services. (c) “Buyer” means a party (g., an advertiser, agency, DSP or network) that buys or attempts to buy Ad Inventory through a Service. (d) “Company Data” means, specifically to the Services covered by these Additional Terms, your data you derive from Advertising Transactions. (e) “Creative” means a digital advertising display creative, including a banner, video, audio or mobile advertisement. (f) “Seller” means a party (e.g., a publisher, network, ad exchange, or SSP) that sells or attempts to sell Ad Inventory through a Service. (g) “Service” means, with respect to these Additional Terms, technology, consulting, and related services that we provide our customers to facilitate Advertising Transactions.
- Services. AdPlay DSP will perform the Services of an advertising trading desk: specifically, it will receive Creatives from you that link to landing pages created and maintained by you or your Clients; it will purchase Ad Inventory from a one or more Sellers on which to display those Creatives using AdPlay’s technology to maximize results for you; and provide you with reports on the performance of the placements. You may access and use, and we will provide, Services in accordance with an insertion order(s), in a form provided by AdPlay (each, an “Order”). Any additional terms and conditions in any Order are incorporated into this Agreement by reference and legally binding.
You understand and agree that, except as otherwise expressly provided herein, no refunds will be issued by AdPlay, for any reason, after payment has been received in connection with and Order.
- Additional Representations and Obligations.
3.1 Our Representations and Obligations. In addition to our representations contained in the general terms above, we represent and warrant that we will facilitate Advertising Transactions in accordance with the terms and conditions of the applicable Order.
3.2 Your Representations and Obligations. In addition to your representations contained in the general terms above, you represent and warrant that you have obtained, and grant to us, sufficient rights to access and use or monetize, as applicable, Creatives, Ad Inventory and Sites through the Services.
- Your Obligations and Service Rules.
4.2 Additional Service Rules.
(a) All executed Advertising Transactions are final, and you will be ultimately responsible for any and all payment obligations for your Advertising Transactions. You will have no recourse for (i) any Advertising Transaction that complies with the terms and conditions of the applicable Order Form (without regard, in any respect, to the performance of such Advertising Transaction), (ii) any discrepancy between your impression count under the Services and the impression count produced by your or a third party ad server, and (iii) any discrepancy between your click count under the Services and the click count produced by your or a third party ad server. Except to the extent caused by our negligence, grey gifs, system defaults and broken images will be counted as executed Advertising Transactions hereunder.
(b) AdPlay may reject, remove or deactivate Creatives and/or Ad Inventory for any reason, including non-compliance with their respective policies (including our Service Policies) or applicable Law.
4.3 Third Party Beneficiaries. We are neither the Buyer nor the Seller in Advertising Transactions, and we therefore do not assume, and expressly disclaim, liability with respect to Creatives, Ad Inventory or any Sites. To facilitate direct dispute resolution between Buyers and Sellers using our Services, each Buyer that purchases Ad Inventory from you is an intended third party beneficiary of your obligations as a Seller, and each Seller from which you purchase Ad Inventory is an intended third party beneficiary of your obligations as a Buyer hereunder (excluding payment obligations). You agree not to assert a defense based on lack of privity against any Buyer or Seller seeking to enforce this Section 4.3. Except as set forth in this Section 4.3, there are no third-party beneficiaries to these Terms.
- Data; Proprietary Rights.
5.1 Data. In connection with the rights granted to us with respect to Company Data in the general terms above, our rights shall include disclosure of impression information to the relevant counterparties in your Advertising Transactions.
5.2 Proprietary Rights. In addition to those rights detailed in the general terms above, we grant you the non-exclusive right to access and use our Services to conduct Advertising Transactions, subject to the terms and conditions of this Agreement.
- Publicity; Press Releases. Notwithstanding the general limitations contained above, we may issue public communications regarding the amount of Ad Inventory that you are expected to make available through the Services.