SongoCPA Advertiser Agreement
[Last updated: January 8, 2016]
This SongoCPA Advertiser Agreement (“Agreement”) is a legally binding and enforceable agreement between Songo Media Group Ltd. (“Company” or “we”) and you (“Advertiser” or “you”).
ACCEPTANCE OF THE TERMS: By clicking “ACCEPT”, “SUBMIT” (or any similar language) or by using the Platform or Service (as defined below) you acknowledge that you have read, understood and agreed this Agreement. You agree to be bound by this Agreement and to comply with all applicable laws and regulations regarding your use of the Platform, including industry best standards. You further acknowledge that this Agreement constitute a binding and enforceable legal contract between the Company and you. IF YOU DO NOT AGREE TO THE AGREEMENT PLEASE DO NOT USE THE PLATFORM OR SERVICES IN ANY MANNER.
Whereas the Advertiser is the owner or has legal rights in the Advertising Materials and the Advertiser wishes Company to promote, distribute and display the Advertising Materials on the applicable Inventory (“Service”); and
Whereas the Company is the owner or has legal rights in the Inventory and has the technical and professional skills to perform the Service.
Now therefore the parties have agreed as follows:
DISCLOSURE APPROVAL: both Advertiser and the Advertising Materials shall be pre-approved by Company prior to the launch of each and every Campaign. Advertiser shall provide Company with all applicable documentation and creative necessary in order to display, promote and distribute the Advertising Material on the Inventory which shall be pre- approved by Company (unless provided by Company). In no event during the term will the Advertising Material contain any Prohibited Content or Fraudulent Activity (as defined below). All content including those served by third parties, are subject to Company’s approval. Company reserves the right to reject or remove any Advertising Material, URL link or position commitment, at any time, that may not meet the above conditions.
Now therefore the parties have agreed as follows:
- “Advertising Material” Advertiser’s mobile application, software, component, information, ads, campaigns, content, photo, text, video, video ads, sounds, graphics, music, image, logos and any other materials or content promoting the Advertiser, its services, apps, products, etc. (as applicable to each campaign) provided by either Advertiser or Company in order to be place on Company’s Inventory.
- “Budget” or “Capping” shall mean the maximum amount Advertiser wishes to be distributed for each calendar month in each geo-location. The Budget Cap maybe revised from time to time by providing the Company with a 72 hour written notice (in which email correspondence shall be sufficient).
- “CPA” shall mean cost per Action. For the purpose of this Agreement, “Action” shall mean subscibtion, sale, impression, click, download, install, etc. as detailed and set forth between the parties during the registration to the platform or via email correspondence and as tracked, reported and detailed by Advertiser.
- The Advertising Material may either be provided solely by the by Advertiser OR in the event the Advertiser wishes the Company to create the Advertising Material (“Company’s Creative”), Advertiser shall pre-approve in writing (email correspondence shall be sufficient) the Company’s Creative and shall be solely liable for the Company’s Creative
- “Confidential Information” means any information of the disclosing party or its affiliates, whether or not in tangible form, of a private, secret, proprietary or confidential nature, or treated by the disclosing party as such (including by marking such information as confidential or by informing the receiving party in writing of such disclosure of Confidential Information). Confidential information shall not include any information that the non-disclosing party can verify with substantial proof: (1) is generally available or known to the public through no wrongful act of the non-disclosing party; (2) was independently developed by the non-disclosing party; or (3) was disclosed to the non-disclosing party by a third party under no obligation of confidentiality to such party; or (4) is required by law or regulation or pursuant to judicial or administrative process to be disclosed; provided, however, that in such case the receiving party shall promptly notify the disclosing party of the details of the requirement to disclose (with supporting documentation) and allow the disclosing party a reasonable time to oppose or otherwise limit such disclosure.
- “dCPC” or “dCPM” shall mean a rate defined by client which includes among others the Advertiser’s goal, click rate, margin and performance rates as well as costs and optimization rates paid by Company, all as decided by Company in its sole discretion and tracked, reported and detailed by Company. Company shall make reasonable efforts to reach the Advertiser’s goal.
- “End User(s)” means an individual viewing the Advertising Material through the Inventory.
- “Fraudulent Activity” means initiating or using in any Advertising Material in connection with this Agreement or placing the Advertising Material on the Inventory that contains any content that: (i) violates any applicable law or regulation or contains any part of the Prohibited Content as well as is inconsistent with industry best practices, including applicable compliance guidelines; (ii) violation of this Agreement; (iii) hacking or phreaking or interfering with the Platform or Inventory or any part thereof, including removes, disables, deactivates or uninstalls the applications and products previously installed on the end user’s device or engaging with or the inclusion or counting of non-human audience or by any other manner of automation (including allowing updates or changes) without a conspicuous disclosure and the end user’s knowledge and prior informed consent; (iv) encouraging or incentivizing end users to visit, click or use the Advertising Material or any related or linked content for the purpose of generating actions, revenues in an illegal manner; (vi) automated or fraudulent tracking methods; or (vii) use or employ any misleading, fraudulent or inappropriate practices that may deceive the End User.
- “Platform” means the network owned, developed or licensed to Company, in which Advertiser may register in order to receive the Service.
- “Prohibited Content” shall mean and any activity or use of content that: (i) illegal or violates any applicable law, regulation or order of any court or tribunal; (ii) has adversely affect public or private infrastructure or equipment; (iii) violates any third party right including without limitation, intellectual property rights and privacy rights; and (iv) use, endorsement or promotion of content which is adult content, pornographic, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, gambling and gambling-related, or discriminatory activity, promotes illegal drugs or arms trafficking, counterfeiting money, violates export control laws, offensive, misleading or deceptive material, or is any type of malware or spyware.
- “Intellectual Property” shall mean all proprietary and intellectual property rights, including, without limitation, any trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know-how, Confidential Information and proprietary technology, either registered or unregistered which is currently owned by a Party or which may be developed or owned by it in the future.
- “Inventory” shall mean digital assets that may include, without limitations, third parties’ or Company’s various online websites, networks, platforms, video players, products and software including mobile apps or mobile websites and browsers, which are offered and presented to the public.
- License Grant
- Subject to the terms and conditions of this Agreement, Advertiser hereby grants to Company and the applicable third parties operating any platform used by Company a royalty-free, worldwide right and license to use, reproduce, technically modify, distribute, present and display the Advertising Material solely in connection with this Agreement (“License”).
- The form, timing and frequency in which the Advertising Material are presented, displayed and distributed shall be determined by Company at its sole discretion.
- Advertiser acknowledges and agrees that: (a) the Advertising Material may be displayed on the Inventory in conjunction with other products or content of third parties that are using the Platform; (b) Company makes no guarantee with respect to the placement, order and number of times the Advertising Material will appear on the Inventory; and (c) in the event of a mobile campaign the distribution of the Advertising Material may be (i) through direct executable distribution on mobile apps and mobile and desktop web-pages; or (ii) through click link to any Android or iOS application distribution platform that may include without limitation, Google Play Store, Apple Apps Store, Amazon App store, etc. (“App Stores”).
- Company retains the right at its sole discretion to: (a) determine the setting, features, functionality and look and feel of the Platform and services; and (b) upgrade or update the Platform.
- Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement; (b) the execution of this Agreement does not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation, enforceable in accordance with its terms; and (d) it complies with any and all applicable laws, regulations, orders, rulings and judgments applicable in the relevant jurisdiction, practices and procedures while performing its obligations hereunder including industry best standards and in the event of mobile distribution, Advertiser additionally represents and warrants that it is in compliance the applicable App Store guidelines and requirements.
- Advertiser hereby represents and warrants that: (a) the Advertising Material are in compliance with all applicable laws, rules and regulations as well as industry best practices, including, without limitation, the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and CAN-SPAM Act of 2003 (“CAN-SPAM”) as well as in compliance the applicable App Store guidelines and requirements (in the event of mobile distribution); (b) it owns or has the valid legal right or license to use and distribute the Advertising Material to the extent required or contemplated hereunder, and the Advertising Material do not and will not, during the term of the Agreement, infringe or violate any Intellectual Property Right or any other right of any person or entity; it is solely responsible for the Advertising Material Materials and any content or technology that may be reached or linked via the Advertising Material; and (c) the Advertising Material and the related content will include a clear and accurate identification of the entity deriving the Advertising Material and a description of the functionality and features including without limitation, description of any End User information that may be accessed, collected, stored, used or shared, by Advertiser. Company will not be responsible for any discrepancy or misleading actions with respect to Advertising Material and the related content.
- It is hereby clarified Company does not have any obligation to monitor the Advertising Material, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the Advertising Material. The Company’s Platform, Service and any Inventory are provided on an “AS-IS” basis, except as expressly provided in this Agreement and to the fullest extent allowable by law, 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 the performance hereunder, and disclaims any such warranties. In addition, Company does not represent or warrant that: (i) the Platform, Service and any Inventory or any part therein will be error free or that any errors will be corrected or (ii) that the operation of the Platform, Service and any Inventory or any part therein will be uninterrupted.
- In consideration for the Service, Advertiser shall pay Company with either the dCPC/dCPM rates and amounts reported by Company or the product of (x) the total amount of Actions reported by the Advertiser; and (y) the CPA rate, all as defined between the parties in the attached IO.
- The payment of the Consideration must be made 30 days from the date of invoice (unless otherwise agreed between the parties). Unpaid charges are subject to interest of 1.5% per month on any outstanding balance, plus all expenses of collection. In the event of any failure by Advertiser to make payment, Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collecting such amounts.
- Payment shall be made on a Net+30 basis (unless otherwise agreed in writing between the parties) in US Dollar and wire transfer.
- Advertiser is solely responsible for payment of any taxes resulting from the acceptance of the Agreement. If any such taxes are required to be withheld, Advertiser shall pay an amount to Company such that the net amount payable to Company after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. 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.
- The reporting and tracking shall be based on either the Company’s or Advertiser’s numbers, reports, statistics and tracking, as defined in the attached IO (“Reporting Party”).
- The Reporting Party will provide the other party with access to a password protected online account, from which it shall receive daily measurements or statistics regarding applicable Campaign. In the event, such online account is unavailable the Reporting Party will provide the other party with a daily email report with the above mentioned information.
- In the event of a dispute, the disputing party shall provide the other party with a written notice specifying the reasons for the dispute. Following the receipt of a dispute notice the parties will cooperate, in good faith, in order to resolve any such dispute. 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 Company hereunder.
- Company may at its expense, no more than twice every twelve (12) months, engage an external independent accountant (“Auditor”) to audit during normal business hours and upon at least 10 days prior notice by Company to Advertiser, Advertiser’s books and records relating to this Agreement and Advertiser’s performance of its monetary obligations under this Agreement. The Auditor shall provide the Company with a written report detailing, as applicable, any discrepancies, if any, discovered. Advertiser will immediately pay any amount in discrepancy as may reasonably be determined by such Auditor following review of such report and discrepancies, and if the final report of such audit reveals an underpayment or other discrepancy of 10% or more during the relevant time period, Advertiser will also reimburse Company for all reasonable costs of the audit. Company’s right of audit under this section will continue and survive for 1year after expiration or any termination of this Agreement.
- This Agreement shall commence upon the signing date below and will continue until terminated by either party. Each party may terminate this Agreement by providing the other party with a 48 hour prior written notice.
- Upon the termination of this Agreement, for any reason: (a) all rights and License granted herein shall be terminated immediately; and (b) Advertiser’s right to use the Platform, Service or any part thereof shall cease immediately.
- Advertiser acknowledges and agrees that the Company will not be liable to Advertiser or any other person or entity for damages resulting from the termination of the Agreement.
- Following the termination of the Agreement, any provisions of the Agreement that in order to fulfill their purpose need to survive the termination of the Agreement shall survive.
THE PLATFORM, SERVICE AND INVENTORY OR ANY OTHER TECHNOLOGY PROVIDED BY THE COMPANY ARE PROVIDED ON AN “AS-IS” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, WITH RESPECT TO THE FOREGOING. THE COMPANY DOES NOT WARRANT THAT: (I) THE PLATFORM, SERVICE AND INVENTORY ANY CONTENT AND TECHNOLOGY AVAILABLE THEREIN WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE FIXED; OR THAT (II) ADVERTISER WILL PROFIT OR DERIVE ANY BENEFIT FROM THE SERVICE. IN NO EVENT WILL THE COMPANY OR ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, SOFTWARE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, PLATFORM, SERVICE AND INVENTORY BASED ON CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE COMPANY SHOULD HAVE REASONABLY FORESEEN 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’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT POSSIBLE BY APPLICABLE LAW. THE TOTAL LIABILITY OF THE COMPANY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES MADE UNDER THIS AGREEMENT DURING THE MONTH PRECEDING ANY CLAIM UNDER WHICH SUCH LIABILITY SHALL ARISE.
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 the Advertiser; (c) any alleged or actual violations by Advertiser or the Advertising Material of any law, regulation or rule; or (d) any infringement of third party rights, including intellectual property rights and privacy rights, resulting from the Advertiser or the Advertising Material. Advertiser will fully cooperate with the 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.
During the Term of this Agreement and 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 and for a period of three (3) years 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.
Each party retains all rights, title in and to all its intellectual property rights including without limitation goodwill, copyrights and moral rights. Other than expressly stated herein, nothing in this Agreement shall grant either party any right, title or interest in any of the other party’s intellectual property. The Company are the sole and exclusive owners of all property rights or interests, legal or beneficial, tangible or intangible, of any sort and kind, in any shape or form, in connection with the Platform and Services, including but not limited to, intellectual and industrial property rights, specifications, technologies, uses, descriptions, programs, software, computer programs, firmware, hardware, know-how, trade secrets, designs, drawings, processes, manufacture, developments, copyrights, copyrights applications, inventions, continuations, discoveries, ideas, drawings, formulas, technologies, computer technology, procedures, licenses, agreements, graphics, names, websites, trademarks, logos, domain names, brands, data structures, algorithms, research and development information and any data of any sort and kind, oral, written or otherwise, and Advertiser will not claim, breach, violate or infringe in any way whatsoever these rights.
Neither party shall be entitled to assign or transfer the Agreement or any of its rights or delegate any of his obligations hereunder without providing prior written notice to the other party; 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; The Agreement and any matters related hereto shall be governed by, and construed in accordance with the laws of Israel without regard to its conflicts of law principles or provisions, and shall be subject to the exclusive jurisdiction of the authorized courts of Tel-Aviv, Israel, to the exclusion of any other court.