Last Revised: August 8th, 2018

Pesto Harel Shemesh Ltd. d/b/a PubPlus (“PubPlus”) provides access to and use of its online software as a service platform which uses PubPlus’s proprietary algorithm and technology to provide end user value attribution in real-time, predict end user behavior, and optimize advertisements’ performance based on specific parameters configured by customers, and may include other services provided by PubPlus, as defined in the relevant Order (collectively, the “Services”) You may use the Services (or any part thereof in accordance with your specific applicable Order duly executed with PubPlus) in accordance with the terms and conditions hereunder.

Capitalized terms which are not defined herein, shall have the meaning ascribed to them in our Privacy Policy which is incorporated hereto by reference.

 

1) Acceptance of the Terms

PLEASE READ CAREFULLY THESE TERMS AND CONDITIONS INCLUDING THE PROVISIONS OF THE PRIVACY POLICY AVAILABLE AT [http://www.pubplus.com/privacy-policy/] WHICH IS INCORPORATED BY REFERENCE HEREIN (THE “PRIVACY POLICY”, COLLECTIVELY THE “TERMS”) BEFORE EXECUTING THE ORDER FORM THAT INCORPORATES THESE TERMS (THE “ORDER”). BY ACCEPTING THESE TERMS THROUGH THE ORDER, YOU AGREE TO COMPLY WITH AN BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THESE TERMS, TO USE THE SERVICES ON BEHALF OF SUCH ENTITY AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THESE TERMS SHALL REFER TO SUCH ENTITY.

IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THESE TERMS, YOU MAY NOT USE THE SERVICES.

 

2) Use of Services

In the event You wish to use and access the Services, upon PubPlus’s acceptance of your Order and unless  a term is defined in the Order, until terminated in accordance with the terms herein (the “Term“), you have, subject to these Terms, the nonexclusive, revocable, non-assignable, non-transferable, limited right to (i) access and use the Services solely for your internal business operations in connection with any text, rich media, graphics, photos, video and/or audio material or combination thereof, and any other creative content, promotional in nature, that is provided to PubPlus by You (“Ad Creative”), and (ii) download, implement and embed the PubPlus software component that may be made available by PubPlus to You pursuant to a valid Order (“Tracker”) in Your website, social media page and/or advertisement to allow tracking and analyzing of traffic and usage of such website and/or advertisement and transmission of such data to PubPlus. You may access the Services via individuals who are authorized in accordance with these Terms by you to access and use the Services (“Authorized Users”). Authorized Users may only access and use the Services through the login credentials issued to them by PubPlus, and You are solely responsible for any instruction, action or activity occurring through any such login credentials. You will use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify PubPlus.

Set-up Services. Subject to these Terms and as detailed in an applicable Order, PubPlus shall provide You with one-time set-up services, including the enhancements, modifications to and set-up of Your advertisements for optimized performance based on parameters configured by You (“Set-up Services”). It is agreed and acknowledged that PubPlus makes no warranty as to the optimization success of any Set-up Services. You, at your discretion, may request additional Set-up Services during the Term hereof subject to an additional fee, and pursuant to an applicable duly executed Order. It is acknowledged and agreed that the advertisements revisions, modifications and/or enhancements proposed by PubPlus as part of the Set-up Services reflect and/or are the result of the application of PubPlus’s proprietary and unique professional know-how. Accordingly, it is agreed that except with PubPlus’s prior written consent, You may use the materials provided by PubPlus through the Set-up Services solely via the Services, and in no event on any other on-line advertisement service.

Acquisition of On-line Media and Collection of Revenue. Subject to these Terms and as detailed in an applicable Order, PubPlus shall at Your request purchase on-line media from third party advertisement and monetization partners on behalf of You through PubPlus’ accounts with such third parties. The media purchased on behalf of You via PubPlus’ accounts shall be used solely in connection with an advertising campaign analyzed via the Services. Revenues collected from the use of media acquired through the PubPlus’ accounts shall be collected by PubPlus via said accounts and distributed by PubPlus pursuant to the terms of Section 3 “Fees”.

Customized Site.  Subject to these Terms and as detailed in an applicable Order, PubPlus shall at Your request set-up a customized website and/or social media page for You in accordance with the specifications, which shall be mutually agreed by the Parties (“Customized Site”). PubPlus shall be responsible, for the development, maintenance, and hosting (if applicable) of the Customized Site. In Your use and operation of the Customized Site, You represents that You will at all times comply with: (i) the advertising policy of Facebook available at https://www.facebook.com/ad_guidelines.php and as updated from time to time, (ii) comply with the Facebook terms of use available at https://www.facebook.com/legal/terms and as updated from time to time, (iii) authorize Facebook to make use of any material or content included in the ads in connection with your ad campaign as stated therein. PubPlus reserves the right, without liability to you, to disable Your access to the Customized Site in the event You breach the provisions of any relevant third-party provider including without limitation, Facebook’s terms as incorporated by reference herein. Upon termination or expiration of the applicable Order, You may, at your option, purchase PubPlus’s share of the Customized Site from PubPlus under such terms as mutually agreed by the Parties, but in no event, shall the purchase price be less than five (5) times the average Profit Share due to PubPlus under the relevant Order in the twelve (12) months prior to termination or expiration of the such Order.

 

3. Fees

In consideration for the provision of the Services, You shall pay PubPlus the fees pursuant to an applicable Order (“Fees“) and in accordance with these Terms.

Fees Calculation. All Net Profits generated from the use of the Services shall be divided between the parties as detailed in the applicable Order (“Profit Share”).  For the purpose of these Terms the following terms shall have the definitions attributed as follows:

  • Media Cost means the total cost actually invoiced to You and/or PubPlus by any media publisher, for the purchase of on-line media inventory in connection with media acquired for an advertising campaign run and/or analyzed via the Services, calculated according to the full price payable by You and/or PubPlus to media publisher(s) for a particular advertisement campaign (or any part thereof).
  • Media Revenue means the gross income received by You and/or PubPlus for a particular advertisement campaign (or any part thereof) analyzed via the Services.
  • Net Profit means, with respect to each particular advertisement campaign (or any part thereof) the difference between the Media Cost and Media Revenue (after deduction of payments, re-payments, refunds).

Reports. PubPlus shall provide to You a report indicating the monthly Media Cost, Media Revenue and Net Profit as calculated by PubPlus (the “Report”) PubPlus’s Profit Share for that particular calendar month. Reports shall be based on data obtained through the Services for that applicable calendar month and designated advertisement campaigns.

Payment Terms.

The payment terms shall be as detailed in an applicable Order.

Media Revenue Discrepancies. In the event of an undisputed Discrepancy between the actual Media Revenue and estimated Media Revue resulting in an over or under payment of the Profit Share for a given calendar month, PubPlus shall adjust and/or refund any such undisputed discrepancy of the Profit Share in the following month’s Report. A “Discrepancy” shall mean any difference between the estimated Media Revenue (as analyzed via the Services and reflected in any given monthly Report) and the actual Media Revenue received by either You or PubPlus from any media publisher in connection with a given advertisement campaign, as evidenced by such media publisher’s written reports (provided to and approved by PubPlus).

Audit. During the Term, and for a period of ninety (90) days following any termination or expiration of an Order, each Party (the “Auditing Party”) shall have a right to reasonable audit the relevant and necessary documents of the other Party (the “Audited Party”) to confirm inter alia the Audited Party’s compliance with these Terms and the relevant Order solely in connection with the Revenue Share. For that purpose, the Auditing Party shall have the right, at its own expense, to select an independent accountant to inspect the records of the Audited Party on reasonable notice and during regular business hours, provided however that such independent accountant shall sign an appropriate confidentiality agreement. Any amount determined by the independent accountant to be due to the Auditing Party shall be paid by Audited Party immediately and if an audit reveals an underpayment by the Audited Party of more than five percent (5%) of the applicable Profit Share during such period audited, then: (i) the Audited Party shall bear the cost of said audit, and (ii) the Audited Party shall pay the Auditing Party the amount of such underpayment plus one and half percent (1.5%) interest on the underpaid amount accruing from the day at which such payment should have been originally made until the day it is actually made.

Additional Terms. In the event You elect to receive additional Services from PubPlus, You shall pay PubPlus the amounts set forth on each Order, as applicable. Unless expressly stated otherwise, all Fees shall be paid in accordance with the payment terms stated on the applicable Order. Any payment not received by PubPlus within such period shall accrue interest at a rate of one and one half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. All Fees and payments (including Profit Share) are exclusive of VAT which shall be borne on You. You may not withhold or set off any Fees or payments due to PubPlus hereunder. All Fees and payments (including Profit Share) are stated and payable in either NIS or US Dollars as reflected in an applicable Order.

 

4. Use Restrictions

There are certain conducts which are strictly prohibited when using the Services. Please read the following restrictions carefully.

You may not, whether by yourself or anyone on your behalf: (i) use the Services and/or Tracker for any purpose other than as permitted by these Terms; (ii) use the Services and/or the Tracker in connection with obscene, defamatory, slanderous, hateful, fraudulent, illegal or politically disruptive material, the definition of which shall be at the sole discretion of PubPlus; (ii) engage in any hostile activity toward the Services and/or the Tracker; (iii) include in the Ad Creative any content that may encourage clicks with offers of cash, prizes or anything else of value in exchange for services; (v) use content, criteria, data, or a design in the Ad Creative that encourages or is reasonably likely to lead to accidental or unintended clicks by a user on any advertisement; (vi) sell, lease, transfer, assign, sublicense or distribute the Services and/or the Tracker or any part thereof, without PubPlus’ prior written consent; (vii) reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the Services and/or the Tracker or any part thereof; (viii) modify, revise, enhance, or alter the Services and/or the Tracker or any part thereof; (ix) use the Services and/or the Tracker to advertise malicious content, spyware, cause of security breached, Trojans or the like; (x) copy, emulate or make derivative works, or allow copies, emulations or derivative works of the Services and/or the Tracker or any part of any of the foregoing to be made (xi) directly use, access, launch or activate the Services and/or the Tracker and any program, code or any other technology, content, software, materials and/or documentation belonging to PubPlus, through or from, or otherwise incorporate them in, any software, application, site or other means; (xii) create or attempt to create a substitute or similar service or platform the Services and/or the Tracker through use or access to the Services or any of PubPlus’ intellectual property; (xiii) record via video, photograph, take screenshots, or otherwise make available the Services structure (platform, user interface, etc.) or tutorial videos of PubPlus to third parties; (xiv) engage in any action or practice that reflects poorly on PubPlus or otherwise disparages or devalues PubPlus’ reputation or goodwill. For the avoidance of doubt, You have no right to access the software code (including object code, intermediate code and source code) of the Services and/or the Tracker, either during or after the Term; (xv) use the results from analyzation provided by PubPlus through the Services on any other on-line advertisement service.

 

5. Intellectual Property

During the course of the Services, You may be required and/or elect to provide PubPlus with data, works and materials: (i) uploaded to, transmission by or storage on  the platform by the You or transmitted via the Tracker; or (ii) generated by as a result of the use of the Services by the You (collectively “Customer Data”). For clarity, Ad Creative constitutes Customer Data. You represent and warrants to PubPlus that You have the full right and authority to provide PubPlus and its third party service providers with the Customer Data and the provision and the use thereof by PubPlus in accordance with these Terms will not: (i) breach the provisions of any applicable law, statute or regulation (including any privacy protection or employment laws) or breach any contractual agreement to which You are a party; (ii) infringe the intellectual property rights, privacy rights or other legal rights of any third party; or (iii) give rise to any cause of action against PubPlus in each case in any jurisdiction and under any applicable law.

You retain all ownership and intellectual property rights in and to Your Customer Data and Ad Creative. You hereby grants PubPlus a non-exclusive, sub-licensable (solely to its hosting, connectivity, telecommunications and other third party service providers) worldwide, royalty-free license, during the Term, to use, copy, reproduce, store, process, publish, distribute and edit your Customer Data: (i) solely as necessary to provide the Services and to allow PubPlus to perform its obligations to You under, and in accordance with these Terms and applicable Order; (ii) to compile aggregated statistics, reports and research for internal or marketing use and for development and/or evaluation of additional or modified services, features and functionality with respect to the Service; and (iii) to disclose any Customer Data if required by law or valid order of a competent court in any applicable jurisdiction, or other governmental authority. PubPlus shall treat your Customer Data as Confidential Information (as such term is defined herein), with all that it entails pursuant to these Terms.

You acknowledge and agree that PubPlus and/or its licensors own all intellectual property rights in the Services, the Tracker, or any part of the foregoing including any and all updates, upgrades, improvements, modifications, adaptations, derivatives, emulations, substituted, or enhancements to the aforementioned. Except as expressly stated herein, these Terms does not grant You or your Authorized Users any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade-marks (whether registered or unregistered), or any other rights or licenses in respect of the Services or other intellectual property of PubPlus. The rights provided under these Terms are granted to you alone, and shall not be considered granted to any subsidiary or holding comply of yours, unless expressly authorized in writing by PubPlus.

You hereby undertakes not to  (i) represent that it possess any proprietary interest in the Services or related documentation; (ii) remove or delete any and all copyright notices, restrictions and signs indicating proprietary rights of PubPlus, including copyright mark [©] or trademark [® or ™] contained in or accompanying the Service; and (iii) use the term “PubPlus”, or any of PubPlus’s service marks or trademarks in any editorial, review, or commercial communications with third parties, including, but not limited to, any advertisement or domain name registrations, without the express prior written approval from PubPlus.

In the event that you provide to PubPlus any suggestions, comments and feedback regarding the Services, you

hereby grant PubPlus and its licensors a perpetual, irrevocable, worldwide, royalty-free, fully paid-up license grant to

freely use, have used, sell, modify, reproduce, transmit, license, sublicense (through multiple tiers of sublicensees),

distribute (through multiple tiers of distributors), and otherwise commercialize such feedback in connection with the

Services or related technologies.

 

6. Your Obligations

You represent, warrant and undertake that, during the Term: (i) You have the required power and authority to enter into these Terms and any applicable Order; (ii) the execution of these Terms and applicable Order and performance of your obligations hereunder do not and will not, to the best of your knowledge, violate any other agreement to which you are a party; (iii) there is no other restriction, limitation, contractual or statutory obligation, including regarding the marketing of online materials and Ad Creatives, which prevents You from fulfilling your obligations under these Terms; (iv) You shall  make every effort to uphold the highest ethical and commercial standards, and comply with all applicable laws and regulations applicable to its business and/or the use of the Service, including data protection, anti-SPAM, and privacy laws and regulations; (v) none of the Ad Creatives and none of your websites to which an end user is directed following a click on any advertisement will contain any obscene, defamatory, infringing, illegal, deceptive, pornographic, gambling–related or hateful content; (vi) Ad Creatives will be free of any “virus”, “Trojan Horse”, “worm”, “disabling”, “lock out” or any other malicious code as such terms are understood in the computer industry; (vii) no Ad Creative will be used for any website or online service directed to children under the age of 13 nor shall any Personal Information about or relating to an individual under the age of 13 be transmitted to PubPlus; (viii) it is solely responsible for the Customer Data, the End User Data, its website and/or the Ad Creatives and the consequences of using, advertising, publishing, promoting, and/or distributing them via the Service, except if such consequences are a direct result of a wrongful or intentional act or omission by PubPlus; and (ix) the Ad Creatives and/or Customer Data is (and will continue to be throughout the Term) true, accurate, complete, and non-infringing upon any third party rights, including intellectual property rights and privacy rights; and (x) You have obtained, and be deemed to have hereby granted to PubPlus, all rights necessary to authorize PubPlus to store, audit, optimize and serve Ad Creatives and otherwise provide the Services to You hereunder; and (xi) You shall not use, merge or otherwise make available to the Services any Personal Information of an End User or other third party in any manner.

 

7. Third Party Accounts

Upon the execution of each Order and during the Term (i) You shall provide PubPlus with the necessary credentials (including without limitation, usernames, passwords, and API keys) to access Your accounts with third party advertisement and monetization partners such as Taboola, Google, etc. for the acquisition of on-line media (“Third Party Accounts”) in order to allow PubPlus to perform the Services, (ii) You hereby grants PubPlus the right to access such Third Party Accounts as necessary in order to perform the Services.

You acknowledge that the Services will enable or assist you to access certain Third Party Accounts and you do so solely at its own risk. PubPlus makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third Party Accounts, or any transactions completed, and any contract entered into by you with any such third party. Any contract entered into and any transaction completed via any Third Party Account is between you and the relevant third party, and not PubPlus. PubPlus recommends that you refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party.

 

8. Indemnification

PubPlus’s Indemnification. If a third party makes a claim against you resulting from your authorized use of the Services in accordance with these Terms, and such claim alleges that the Services  infringe such third party’s intellectual property rights, PubPlus, at its sole cost and expense, will defend you against the claim and indemnify you from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by PubPlus, provided you do the following: (i) notify PubPlus promptly in writing, not later than 30 days after you receive notice of the claim (or sooner if required by applicable law), (ii) give PubPlus sole control of the defense and any settlement negotiations; and  (iii) give PubPlus the information, authority, and assistance PubPlus needs to defend against or settle the claim. It is hereby clarified that PubPlus shall not indemnify You under Section 8 (i) to the extent You have provided PubPlus any Personal Information in violation of your obligation under Section 6(xi). You and not PubPlus shall be responsible for any information provided or made available to PubPlus, beyond the scope permitted under this Agreement.

If PubPlus believes or it is determined that the Services may have violated a third party’s intellectual property rights, PubPlus may choose to either modify the Services to be non-infringing (while substantially preserving their utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, PubPlus may terminate your rights under these Terms or applicable Order and refund any unused, prepaid fees you may have paid for the Services. Notwithstanding anything to the contrary contained hereunder, PubPlus will not indemnify or defend you if you altered the Services or used them outside the scope of use identified in these Terms, or if You used a version of the Services which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Services which was provided to you. In addition, PubPlus will not defend or indemnify you to the extent that an infringement claim is based upon (i) any Ad Creative, Customer Data, End User Data, information, design, specification, instruction, software, data, or material not furnished by PubPlus, or (ii) any materials from a third party portal or other external source that is accessible to You within or from the Services (e.g., a third party web page accessed via a hyperlink). PubPlus will not indemnify You to the extent that an infringement claim is based upon the combination of the Services with any products or services not provided by PubPlus. PubPlus will not indemnify you for infringement caused by your actions against any third party if the Services as delivered to you and used in accordance with the terms of these Terms would not otherwise infringe any third party intellectual property rights. This section provides your exclusive remedy for any infringement claims or damages.

Your Indemnification. You shall indemnify, defend, and hold PubPlus (including its officers, employees, agents and affiliates) harmless from and against any claims, damages, losses, and liabilities incurred or arising from any third-party claims that: (i) Customer’s Data, Ad Creatives, Your website, End User Data or other content violates any third party rights, including without limitation, infringement or violation of the intellectual property rights or privacy rights of such third party; (ii)  Customer’s Data, Ad Creatives, Your website, or other content are obscene, defamatory, illegal, unethical, or promote illegal behavior; (iii) You failed to obtain any necessary permit, license or consent in connection with these Terms and/or any Order, including in connection with the Customer Data or End User Data; and/or (vii) Your violation or alleged violation of any of your warranties and/or obligations under these Terms or applicable Order.

 

9. Confidentiality

By virtue of these Terms or provision of the Services, the parties may have access to information that is proprietary or confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under the Terms.

A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party without use of or reference to the Confidential Information.

We each agree to hold each other’s Confidential Information in confidence for a period of ten years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. PubPlus will protect the confidentiality of your Customer Data in accordance with the Privacy Policy. Nothing shall prevent either party from disclosing the terms or pricing under these Terms in any legal proceeding arising from or in connection with these Terms or from disclosing the Confidential Information to a governmental entity as required by law.

 

10. Disclaimer and Warranties

PubPlus warrants and represents that (i) it exclusively owns or is the licensee of the Services, Tracker and the intellectual property rights therein and has the full legal rights, licenses and authority to grant the license to You, as provided herein and (ii) when used by You in accordance with these Terms, the Services will substantially conform to the documentation. This warranty shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to PubPlus’s instructions, or modification or alteration of the Services by any party other than PubPlus or PubPlus’s duly authorized contractors or agents. If the Services do not substantially conform to the documentation, PubPlus will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the warranty set out above.

EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, YOU UNDERSTAND AND AGREE THAT THE SERVICES AND TRACKER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR RELIABILITY. IN THE EVENT PUBPLUS PROVIDES YOU WITH ANY CREATIVE IN CONNECTION WITH YOUR CAMPAIGN, SUCH CREATIVE IS PROVIDED WITHOUT WARRANTY OF ANY KIND, AND YOU EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF SUCH CREATIVE  IS AT YOUR OWN RISK. PUBPLUS ASSUMES NO LIABILITY FOR YOUR  USE OF THE SERVICES INCLUDING ANY PUBPLUS-PROVIDED CREATIVE. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT PUBPLUS DOES NOT GUARANTEE THAT THE SERVICES OR THE PERFORMANCE OF THE SERVICES WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF ANY PROGRAM LIMITATIONS OR FAILURES, OR THAT THE SERVICES AND/OR ANY FEATURE AVAILABLE THEREIN (WHETHER OR NOT CONFIGURABLE BY YOU) AND/OR ANY INFORMATION OBTAINED BY YOU THROUGH THE USE OF THE SERVICES WILL MEET AND/OR PERFORM IN ACCORDANCE YOUR REQUIREMENTS, SPECIFICATIONS, EXPECTATIONS, CONFIGURATIONS AND/OR GOALS, OR THAT PUBPLUS WILL CORRECT ANY OR ALL  ERRORS, DEFICIENCIES AND/OR NON-PERFORMANCES. YOU ACKNOWLEDGE THAT PUBPLUS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PUBPLUS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

PUBPLUS MAY, AT ITS SOLE DISCRETION, CORRECT, MODIFY, AMEND, ENHANCE, IMPROVE AND MAKE ANY OTHER CHANGES TO THE SERVICE AT ANY TIME WITHOUT ANY NOTICE TO YOU.

 

11. Limitation of Liability

UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT OR LOSS RESULTING FROM BUSINESS INTERRUPTION OR LOSS OF DATA, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. NEITHER PARTY WILL NOT BE LIABLE TO THE OTHER PARTY FOR ANY DELAY, LOSS OR DAMAGE ATTRIBUTABLE TO ANY SERVICE, PRODUCT OR ACTION OF ANY PERSON OTHER THAN ITS OWN AND ITS EMPLOYEES. IN NO EVENT WILL PUBPLUS’ AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OR ANY SERVICES (WHETHER IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE) EXCEED THE AGGREGATE FEES AND PAYMENTS PAID BY YOU TO PUBPLUS UNDER THESE TERMS/RELEVANT ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION ARISES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THESE TERMS MAY BE BROUGHT BY EITHER PARTY MORE THAN TWELVE (12) MONTHS AFTER THE TERMINATION OR EXPIRATION OF THE RELEVANT ORDER.

 

12. Amendments to the Terms

PubPlus may change the Terms from time to time, at its sole discretion and without any notice. We will notify regarding substantial changes of these Terms on the homepage of the PubPlus website. Such substantial changes will take effect seven (7) days after such notice was first provided on any of the abovementioned methods. Otherwise, all other changes to these Terms are effective as of the stated “Last Revised” date and your continued use of the Services after the Last Revised date will constitute acceptance of, and agreement to be bound by, those changes.

 

13. Termination

The Services provided under these Terms and applicable Order shall be provided for the period defined in the Order unless earlier terminated in accordance with these Terms. All rights and licenses granted to you under these Terms shall immediately terminate upon expiration or termination of the Term, and you shall cease all use of the Services, and delete and purge all traces of the Services and/or Tracker from your systems and custody. Each Party shall promptly return to the other Party, or destroy and certify the destruction of, all Confidential Information (as defined below) to the other Party. The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced by the termination or expiration of the Term.

Termination by PubPlus due to Non-successful Campaign(s). If PubPlus, in its sole discretion, determines that one or more of Your advertisement campaigns is performing non-successfully in a manner determinantal to PubPlus (“Non-successful Campaign”), PubPlus may terminate the relevant Order Form or any specific Non-Successful Campaign upon the provision of written notice to You, provided that You have failed within 24 hours following its receipt of such written notice, to remove said reported Non-successful Campaign or cure its detrimental effect in accordance with the recommendations of PubPlus which shall be in included in said written notice.

Termination for Convenience. Either Party may terminate a relevant Order upon the provision of thirty (30) days written notice to the other Party.

Termination for Cause. If either Party materially breaches these Terms or relevant Order, the non-breaching Party may terminate such relevant Order upon provision of written notice to the other Party, provided that the breaching Party has failed to cure such breach within thirty (30) days following its receipt of such notice.

 

14. Miscellaneous

Miscellaneous. Any written notice connected with these Terms will be sufficiently made on the mailing date if sent by registered, certified or first class – postage prepaid mail to the other party at its address set forth on the relevant Order. Nothing in these Terms shall in any way be construed to constitute You or PubPlus as an agent, partner, joint-venturer, employee or representative of the other, and both You and PubPlus shall remain independent contractors. You may not assign the Terms or give or transfer the Services or an interest in them to another individual or entity. Each of You and PubPlus intends that these Terms will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than You and PubPlus. You agree that PubPlus may publicly refer to You as its customer in sales presentations, marketing materials and press releases, and that PubPlus shall be permitted to display the logo of You on PubPlus’s website. Each of You and PubPlus will be excused for delays in performing or from its failure to perform hereunder (other than payment delays) to the extent that the delays or failures result from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of the delay or failure. No waiver by either You or PubPlus of any breach of these Terms will constitute a waiver of any other breach of the same or other provisions of these Terms. No waiver by either You or PubPlus will be effective unless made in writing and signed by an authorized representative of that party. These Terms (including reference to information contained in a URL or referenced policy), together with any outstanding Order executed pursuant thereto, constitutes the entire agreement and understanding of You and PubPlus relating to the subject matter hereof. These Terms supersede all prior written and oral agreements and all other communications between PubPlus and You. If any provision in these Terms is invalid or unenforceable in any circumstance, its application in any other circumstances and the remaining provisions of these Terms will not be affected thereby. In the case of conflicts or inconsistencies between these Terms and any Order hereto, these Terms will prevail, except as specifically stated otherwise. Unless designated as replacing a specific outstanding Order, a new Order will be considered to be in addition to then-outstanding Order.

Exclusivity. During the term of the relevant Order and for a period of twelve (12) months following expiration or termination thereof for any reason, PubPlus shall be Customer’s exclusive provider of real-time end user value attribution.

Governing Law. These Terms and any relevant Order and any claim arising from these Terms or any relevant Order will be governed by and interpreted in accordance with the laws of the State of Israel, without regard to conflicts of laws and principles. Any and all actions brought to enforce or resolve any dispute arising out these Terms or any relevant Order must be brought exclusively in courts having jurisdiction in Tel-Aviv-Jaffa, Israel and each party hereby consents to and agrees to submit to the exclusive personal jurisdiction and venue of such courts.

Compliance with Export Regulations. You have or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals (if applicable); shall indemnify and hold PubPlus harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. You shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws (e.g., in the U.S., Israel, the Bureau of Export Administration of the U.S. Department of Commerce).

 

15. For information, questions or notification of errors, please contact:

If you have any questions (or comments) concerning the Terms, you are most welcomed to send PubPlus an e-mail at: [info@pubplus.com], and we will make an effort to reply within a reasonable timeframe.