AFFILATE NETWORK ONLINE AGREEMENT

[Last updated: December 8, 2015]

This Affiliate Agreement (“Agreement”) is a legally binding and enforceable agreement between Songo Media Group Ltd. (“Company” or “we”) and you (“Publisher” or “you”).

ACCEPTANCE OF THE TERMS: By clicking “ACCEPT” (or any similar language) or by using the Platform (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 Publisher is the owner or has legal rights in certain sites, platforms, network and any other digital assets which are offered to the public by it (“Inventory“); and

Whereas the Company wishes that the Publisher will promote either its various products or services (“Company’s Product(s)”) or third party products and services (“Advertiser Product(s)”) or both (together hereinafter, the “Products”) through such Inventory;

Now therefore the parties have agreed as follows:

  1. Definitions
    1. Action” means installs, clicks, sales, impressions, downloads, registrations, subscriptions, etc. as defined by the Company or Advertiser (as applicable). Publisher shall receive payment for each valid Action as specified below.
    2. Advertiser” means third party partners providing Company with legal rights to the Advertiser Products wishing to promote, distribute, sold or otherwise facilitate through the Inventory.
    3. Advertising Material(s)“means any information, ads, campaigns, content, photo, text, video, sounds, graphics, music, image, logos and any other materials or content promoting the Products which may either be provided solely by a the by Company, the Advertiser to be place on Publisher’s Inventory. In the event it was pre-approved in writing (email correspondence shall be sufficient) the Advertising Materials can be also created by Publisher.
    4. Budget Cap” means the maximum amount to be paid by the Company to the Publisher for each calendar month in each geo-location. The Budget Cap maybe revised from time to time by the Company or Advertiser (as applicable) upon providing the Publisher with a written notice (in which email correspondence shall be sufficient).
    5. 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.
    6. End User(s)“mean an individual end user of Publisher’s Inventory.
    7. Fraudulent Activity” means any of the following: (a) automated, fraudulent, invalid or fictitious downloads or installations; (b) automated or fraudulent clicks on any Advertising Materials; (c) incentivizing any person to, or engaging in any activity that is likely to inflate revenue, the number of installations or use of any automated program in order to generate such installations; (d) misleading, deceptive or illegal generation of traffic; (e) using any material that contains any viruses, worms, Trojan horses, or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment; (f) any promotion that violates any applicable law or regulation, or infringes any third party’s rights, including privacy or proprietary rights; (g) removes, disables, deactivates or uninstalls the applications and products previously installed on the End User’s device; and (h) hacks or phreaks the Advertising Materials or Products in any manner or any portion thereof; including, without limitation, engaging with or the inclusion or counting of installs by non-human audience or by any other manner of automated installation (including allowing updates or changes) without a conspicuous disclosure and the end user’s knowledge and prior informed consent (e.g. silent installs).
    8. Platform” means the Songo CPA Affiliate Network owned and developed by Company in which Publisher may register to promote the Products.
    9. Intellectual Property” means 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.
    10. Publisher Distribution Guidelines” means the most current version of the Company’s Guidelines for Publishers available here.
    11. Valid Action“means any Action which is not a result of any Fraudulent Activity or breach of this Agreement and was accepted and confirmed by Company or Advertiser (as applicable).
  2. The Service and License
    1. Subject to the terms and conditions of this Agreement, Publisher will register to the Platform (as specified in Section 3 below) and promote, distribute and sell the Products through the its Inventory.
    2. Publisher will be solely responsible for the implementation of the Advertising Materials (and in some cases to the creation of such materials- as applicable) in the Inventory as instructed by the Company and to ensure proper functionality, placement and linking of the Advertising Material.
    3. Subject to the terms and conditions of this Agreement, the Company grants to Publisher a revocable, non-exclusive, non-assignable, right to use the Platform and Advertising Materials as well as to distribute and promote the Products. Publisher may not use the Platform, Products or the Advertising Materials in any manner not expressly permitted by this Agreement. Publisher may not reproduce, modify or make any use of the Platform, Products or the Advertising Material except as expressly provided and permitted in this Agreement. Any and all rights not expressly granted in this Agreement are expressly reserved by the Company and or its partners or licensors.
    4. The license granted herein will immediately terminate if Publisher does not comply with its obligations under this Agreement.
  3. Registration
  4. As part of your registration process you will be asked to fill in information regarding you and your Company and to choose a username and password with which you shall be able to access the Platform under the Publisher Account. To better understand the terms of registration, your undertakings and Company’s collection of data we recommend you to review our Terms of Use and Privacy Policywhich are incorporated herein by reference. In addition, upon your registration Company will review your details and the Inventory and determined in its sole discretion whether to accept or reject you or the Inventory (in whole or in part) to the Platform. Please note even if accepted, Company reserves the right (as specified herein throughout this Agreement) to reject you as a Publisher on the Platform or reject and remove the Inventory (in whole or in part) from the Platform.

  5. Fees and Payments
    1. Subject to the terms and conditions the Company will pay the Publisher a consideration that that will be equal to the sum total of the product of (y) the number of Valid Actions in the applicable calendar month; multiplied by (z) the CPA rate set. It is clarified that Publisher shall not receive any payment for Actions generated in means not compliant with this Agreement or not compliant with the Publisher Distribution Guidelinesor were deemed as generated from Fraudulent Activity or invalid as determined by Company or the Advertiser in their sole discretion.
    2. Unless otherwise agreed between the parties in writing (email correspondence is sufficient) the payments will be made by Company on a Net+30 basis by wire transfer and in US Dollars.
    3. Payment shall be made subject to receipt of an applicable invoice by Publisher. Publisher acknowledges and agrees that the Company will not be required to pay Publisher until the amount owed to Publisher is equal or exceed one hundred U.S. Dollars (US$100) otherwise the payment will be carried over to the following month.
    4. Payment will be calculated and tracked solely based upon the Company’s records (and in some events subject to Advertisers reports as well). During the Term hereof, the Company will provide Publisher with access to an online reporting system where Publisher will be able to view measurements or statistics regarding impressions, clicks, actions, downloads or revenue, as applicable (“Report”). All Reports may be updated and adjusted up to five (5) days back. The Company is not liable for any unavailability or inaccuracy, temporary or otherwise, of the reporting system.
    5. If Publisher disputes the information detailed in a Report, it will provide the Company with a written notice that will specify the reasons for such dispute (“Dispute Notice”), by no later than ten (10) days as of receipt of such Report. Following receipt of a Dispute Notice, the parties will co-operate, in good faith, to reach a solution to such dispute. The Company may withhold payment of any disputed amounts until the dispute is resolved. Publisher acknowledges and agrees that in the event it did not submit a Dispute Notice the Report and payment amount shall be deemed final and non-disputable.
    6. Each party shall bare its own taxes, duties and charges imposed or that may be imposed by any applicable governmental agency in connection with the Agreement and each party’s performance hereunder.
  6. Representations & Warranties
    1. Each Party hereby represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required hereunder; (b) the execution of this Agreement and the performance of its obligations and duties hereunder does not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each Party, enforceable against each Party in accordance with its terms.
    2. Publisher hereby represents and warrants that: (a) it owns all rights, licenses and permissions to use the Inventory, or any part thereof, and to place, deliver or display the Advertising Material on the Inventory as set out in this Agreement; (b) Publisher as well as the Inventory provided by it, will act in compliance with applicable laws, regulations and policies (including without limitation industry best practice); (c) Publisher will ensure that the Inventory as well as Advertising Materials created by it, will comply with the Publisher Distribution Guidelines; (d) Publisher shall not, either directly or indirectly, use or engage with any Fraudulent Activity to generate traffic to the Advertising Materials or Products or for any other purposes; (e) Publisher shall not redirect End Users to an intermediate webpage or URL (i.e. once End Users clicks on Advertising Material it shall be directed to a designated landing page) and Publisher shall not otherwise interfere with the Platform, Products and Advertising Materials; (f) Publisher shall not use any of the Products and Advertising Material other than as set forth herein or provided by the Company without the Company’s prior written consent; (g) Publisher shall not use materials or content which are deceptive, false, misleading, obscene, libelous, defamatory, profane, illegal, or otherwise offensive material or in any context that might harm the goodwill or reputation of the Company or that disparages or devalue the Company or infringes any third party rights, including, but not limited to any privacy, publicity or proprietary right; (h) Publisher shall be solely responsible for the maintenance and compliance of the Inventory (and Advertising Material if applicable), including without limitations, the content available through the Inventory, addressing any antivirus detections, implementing the proper legal documentations (e.g., applicable disclaimers, privacy policies, terms of use, etc.);
    3. Publisher acknowledges and agrees that at any time during the term of this Agreement, if in the Company’s sole discretion it is not compliant with the Publisher Distribution Guidelines or with the terms and conditions of this Agreement, then the Company may: (a) immediately terminate this Agreement; (b) take any measure it sees fit to prevent or cure any damage caused by Publisher’s conduct; or (c) remove any of the Inventory from the Platform, as well as remove immediately any Products or Advertising Materials from the Publisher’s Inventory with or without notice.
  7. Term & Termination
    1. This Agreement shall commence upon the Effective Date and will continue until terminated by either party according to this section.
    2. Either Party may terminate this Agreement between 24 to 48 hours’ in advance by providing a written notice (which can be made in a form of e-mail). Notwithstanding the aforesaid, the Company may terminate this Agreement immediately, if: (a) Publisher breached any of its obligations, representations or warranties set forth in the Agreement; (b) Publisher engaged in any action that, in the Company’s sole discretion, reflects poorly on the Company its partners or the Advertiser; or (c) the Company determines, in its reasonable discretion, that it is commercially impractical for it to continue performing under this Agreement as a result of legal, regulatory or technical considerations.
    3. Upon the termination of this Agreement, for any reason: (a) all rights and licenses granted herein shall be terminated immediately; and (b) Publisher’s right to use the Platform and promote the Products or any part thereof shall cease immediately.
    4. Publisher acknowledges and agrees that the Company will not be liable to Publisher or any other person or entity for damages resulting from the termination of the Agreement.
    5. 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.
  8. Disclaimer and Limitation of Liability
  9. THE PLATFORM, ADVERTISING MATERIALS AND PRODUCTS AND ANY OTHER TECHNOLOGY OR SERVICES 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 PRODUCTS, PLATFORM AND THE ADVERTISING MATERIALS OR ANY CONTENT, TECHNOLOGY OR SERVICES AVAILABLE THEREIN WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE FIXED; OR THAT (II) PUBLISHER WILL PROFIT OR DERIVE ANY BENEFIT FROM THE USE OF THE PRODUCTS OR PLATFORM. 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, THE PLATFORM, ADVERTISING MATERIALS OR THE PRODUCTS, 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. IF APPLICABLE LAW LIMITS THE APPLICABILITY OF THIS LIMITATION OF LIABILITY SECTION, THEN 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.

  10. Indemnification
  11. Publisher 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 Publisher 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 Inventory of any law, regulation or rule; or (d) any infringement of third party rights, including intellectual property rights and privacy rights, resulting from the Publisher or the Inventory. Publisher 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 Publisher will not settle the claim without the Company’s prior written explicit approval.

  12. Confidentiality
  13. 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.

  14. Intellectual Property
  15. 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 and Advertiser (as applicable) 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, Advertising Materials and Product, 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 Publisher will not claim, breach, violate or infringe in any way whatsoever these rights.

  16. General
  17. 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.

    PLEASE NOTE, Company reserve the right to suspend, remove, restrict or disable your access to parts or all of the Platform, Service, Dashboard, Product or Advertising Materials at any time and without notice or liability, at Company’s sole discretion. In no event will the Company be liable for the suspension, removal, and restriction or disabling of the Publisher’s access to the Platform, Service, Dashboard, Product or Advertising Materials or to any feature available therein. Furthermore, the Company reserves the right, at its sole and absolute discretion, to change, modify, add to or delete any of the terms and conditions of this Agreement at any time, including without limitation the availability of any feature of the Platform, Service, Dashboard, Product or Advertising Materials. In the event of material revision or modification Company will be disclose to you by email, or through website posting. Your continued use of the Platform or continue to any distribution activity following any revision of the Agreement constitutes Publisher’s complete and irrevocable acceptance of any and all such changes. If you do not agree with any update or modification, you should cease the use of the Platform, Advertising Materials or distribution of the Product.