TERMS OF SERVICE - VALUE-DRIVEN MARKETING PARTNERSHIP (VDMP) PROGRAM

PARTNER AGREEMENT

This Partner Agreement (the “Agreement”) is made between the person or entity identified in the commercial agreement in which this Agreement is referenced (the “Commercial Agreement”) (hereinafter: “You” or “Your” or “Partner”) and Kankado Cellular Solutions Ltd., a company registered in Israel (“TROPHiT” or “Company”). The aforementioned parties shall also be known collectively as “Parties” and individually as a “Party”. THE MOST CURRENT VERSION OF THIS AGREEMENT CAN BE FOUND AT TROPHiT website.

ALL USE OF THE SOLUTION (AS DEFINED BELOW) SHALL BE SUBJECT TO THE SPECIFICATIONS, FEES, FEATURES, SCOPE, DURATION AND SUCH ADDITIONAL TERMS AND CONDITIONS, WHICH WERE SPECIFIED IN THE COMMERCIAL AGREEMENT OR AS FROM TIME TO TIME PRESENTED TO YOU THROUGH THE SOLUTION (“COMMERCIAL TERMS”). THE TERMS AND CONDITIONS OF THE COMMERCIAL TERMS ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT, AND ANY REFERENCE TO THIS “AGREEMENT” SHALL ALSO REFER TO THE COMMERCIAL TERMS.

Whereas         TROPHiT has developed certain proprietary technology, know how and systems known as collectively as TROPHiT™ (the “Solution”), that allows advertisers, in conjunction with the services of publishing partners (ad networks, DSP’s, RTB and more), to (i) create certain virtual goods, content items, and/or items vouchers (e.g. in the form of discounts, prizes or other benefits) all known in this Agreement as “Vouchers” (as more specifically defined below) for their own mobile app, and (ii) advertise such Vouchers to Users (as defined below) and (iii) process the redemption of such Vouchers;

Whereas Partner engages or plans to engage in providing services to one or more Direct Advertisers (as defined below) under a contract between Partner and  each Direct Advertiser;

Whereas Partner wishes to take part of the Value-Driven Marketing Partner (VDMP) Program whereby Partner may use the Solution and Services to promote the Advertiser Apps of such Direct Advertisers, and for such purpose, Partner wishes to create and distribute Vouchers, all for a consideration payable by Partner, and upon such other terms and conditions, as defined in Agreement;

Now, therefore, it is agreed between the Parties as follows:

0. Definitions

In this Agreement,

Account” means an account on the Solution and means of access;

Advertiser Content” means any multi-media images, graphics, text, data or other objects originating or transmitted by Direct Advertiser or Partner to TROPHiT under this Agreement;

Campaign” means any VDM Service marketing campaign in connection with an Advertiser App of a Direct Advertiser through the Solution in the scope and manner specified under the Commercial Terms ;

Direct Advertiser” means an advertiser to which Partner provides VDM Service pursuant to a contract, where such advertiser is the legal owner of mobile app (“Advertiser App”), who has all-access to update the app’s code (client-side and/or server-side), as well as to publish it on the Apple App Store, Google Play, Microsoft Store,  Amazon Store or any Direct-Download service which allows an end user to directly download an app binary (.IPA, .APK and so on) to their mobile device. For comparison, an ad network which is the advertiser of a certain mobile app is not the legal owner of that app, or does not have all-access to update the app’s code, or does not have access to publish that app on the stores mentioned above, and is therefore not considered a “Direct Advertiser”;

Redemption” means a successfully-completed process, in integration with the Solution, of providing the virtual items represented by a Voucher to a User that claims such Voucher;

Third Party Publishers” means third party publishing partners, including third party ad networks (“Ad Networks”) as well as owners of websites, mobile apps and software (“Third Party Apps”);

VDM Service” (Value-Driven Marketing Service) means any marketing service offered by Partner in its own name to a respective Direct Advertiser, which requires any TROPHiT technologies to operate;

Users” or “Third Party App/Ad Network Users” means users of Third Party Publishers who are exposed to an offering of any Voucher or act upon (or try to act upon) such offering;

Voucher” or “Virtual Goods” means a logical marketable unit as defined by TROPHiT technologies, representing certain redeemable virtual assets inside a mobile app;

Voucher Operator” means the entity capable of creating and controlling Campaigns, and is responsible for paying all associated fees to TROPHiT with respect thereto. In the case of Campaigns created in the VDMP Program by Partner, the Voucher Operator is the Partner;

1.               Scope

1.1.           Subject to the terms and conditions herein, TROPHiT shall enable  Partner, acting in Partner’s own name, to use the Solution in such format and manner as enabled by the Solution, to create, offer and process Vouchers in conjunction with related Advertiser Content and through Third Party Publishers contracted by Partner or the Direct Advertiser (the “Services”).

1.2.           Partner shall cooperate with TROPHiT, if and as required by TROPHiT from time to time to resolve any integration or use issues, including vis-à-vis Third Party Publishers or to otherwise enable ongoing activities and operations under this Agreement.

1.3.           Partner (and not TROPHiT) shall be responsible and liable for any and all commercial, technical and other activities, interaction, contracting, etc. vis-à-vis any Third Party Publishers

1.4 Partner will have an Account associated with the VDMP program. Partner may only provide VDM Service to a Direct Advertiser who has acceded to the Advertiser Terms of Service and has created an Account for the Direct Advertiser associated with the VDMP Program. On the Direct Advertiser Account, Partner will have permissions to manage the Campaigns under the VDMP Program. For clarity, Partner (including for this purpose through user on behalf of Partner) will be responsible for all actions under the Direct Advertiser Account with respect to Campaigns operated by Partner under the VDMP Program.

1.5 The undertakings of the Direct Advertiser under the Advertiser Terms of Service as set forth in Section 1.4 do not limit the liability of Partner hereunder. For avoidance of doubt, the Direct Advertiser in not restricted from independently creating campaigns on the Solution using its own Account (namely, outside the VDMP Program) and will be responsible for such campaigns and for payment in respect of them.

1.6 Without derogating from the generality of the foregoing, Partner is responsible and liable, where applicable, for defining/marking a campaign as Facebook-originated as per TROPHiT requirements during the definition of any specific Campaign and/or Voucher.

2.               License grant and IP rights

2.1.           As between the Parties, Partner or Advertiser shall retain all right, title and interest in and to Advertiser Content.  Partner, for itself and on behalf of the respective Direct Advertiser, hereby grants to TROPHiT a non-exclusive, irrevocable, perpetual, fully paid-up , sub-licensable, worldwide license, to use or have use the Advertiser Content together with or in the Solution, incorporated and embedded in Third Party Apps, including for the purposes set forth under Section 1.1 of this Agreement and including but not limited to vis-à-vis Third Party App developers, Ad Networks and any and all related subcontractors or service providers.

Subject to the timely payment of all applicable fees specified under the Commercial Terms, and subject to the terms and conditions of this Agreement, TROPHiT hereby grants to Partner a non-exclusive, non-transferable, license, without right to sub-license, to use the Solution in connection with actually paid-for Campaigns for the duration of such Campaigns or such other term specified under the Commercial Terms.

2.2.           Restrictions: Other than the rights expressly licensed hereunder, no other rights or interests whatsoever in the Services, Solution, and/or any component thereof are transferred or granted to Partner, any Advertiser or any third party. Without limiting the foregoing, Partner may not: (a) use the Services and/or Solution for purposes other than those explicitly set forth hereunder; (b) reverse engineer or de-compile, modify or revise the Solution, or any part thereof, or create derivative works thereof; (c) sub-license or otherwise allow others to use the Services and/or Solution, or any part thereof, unless otherwise expressly authorized by TROPHiT in advance and in writing; (d) use the Solution or Services for any illegal purposes, or in any illegal manner; (e) use the Solution other than for Campaigns of Partner’s Direct Advertisers who hold an advertiser Account on the Solution.

2.3.           TROPHiT is the sole and exclusive owner of all rights, title and interests in and to the Services and Solution (and all software, databases and other aspects of the Solution) as well as to any modifications, enhancements, updates, derivatives or improvements thereto and any copyrights, notices, trademarks or other proprietary or restrictive notices or legends.

2.4.           Third Party Software. Certain portions of software provided with the Solution may be subject to “open source” or “free software” licenses (“Third Party Software”). Such Third Party Software is not subject to the terms and conditions of this Agreement, but is licensed under the terms and conditions of the license that accompanies such Third Party Software.

3.               Payment

In consideration for the rights and services granted and/or to be provided under this Agreement, Partner shall pay to Company the fees specified under the Commercial Terms in accordance with the payment and other terms specified thereunder.

TROPHiT will provide invoices to Partner, payable by Partner within 15 business days, unless otherwise determined by the Commercial Terms. Applicable VAT will be added to all amounts specified under the Commercial Terms.

All amounts payable hereunder are exclusive of all applicable taxes and government charges, and are payable to TROPHiT without deduction for, and free and clear of, any such amounts.

4.               Partner Representations, Warranties and Indemnification; TROPHiT Disclaimer and Limitations

4.1.           Partner hereby represents and warrants that:(a) it is duly organized and validly existing under the laws of the state of its incorporation; (b) it owns all right, title and interest to its business and the Advertiser Content as necessary for the purpose of this Agreement; (c) it shall honor and procure that the Direct Advertiser honor the Virtual Goods it has offered in the Advertiser Content and obtained by Third Party App/Ad Network Users and shall comply with the terms of any such Virtual Goods in good faith and subject to the usual terms generally applicable to the purchase of an equivalent product or service, including after the termination of this Agreement for any reason; (d) it, and not TROPHiT, shall be fully responsible and liable for the product, service or benefit obtained by a Third Party App/Ad Network Users pursuant to the realization of a Virtual Good; and (e) Partner shall bear sole responsibility and liability for the Advertiser Content and Campaigns and for any damages, direct or indirect, arising from or associated with the exposure, use or other references in the Advertiser Content.

Any and all liability, responsibility and undertakings vis-à-vis Third Party App/Ad Network Users and/or other third parties which shall be using or accessing the Advertiser Content and/or Campaigns, and/or realizing and/or trying to realize any Virtual Goods, as well as vis-à-vis any related third parties, such as the providers/operators of any app stores or similar platforms (the foregoing together “Consumers”) shall be borne by Partner, and Partner agrees to immediately and at all times indemnify, defend, and hold harmless TROPHiT, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents from any and all claims, liability or damages which may arise in connection with Consumers.

4.2.           Partner hereby represents and warrants that Partner’s use, and/or the Virtual Goods and/or Advertiser Content or Advertiser’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features does not and will not: (i) violate the intellectual property rights or any other rights of any third party; (ii) violate any applicable law or is subject to an injunction; (iii) contain sexually explicit content, be of  pornographic, obscene or otherwise violate this Agreement; (iv) be distributed by Partner improperly; You may not use the Solution and/or Services with Advertiser App that: (v) promote or depict illegal activity or violence, (vi) advocate against a particular group , (vii) introduce viruses, spyware, and malware, (viii) depict illicit drugs and drug paraphernalia, (ix) promote non-virtual weapons or ammunition, (x) promote hard liquor, (xi) could harm minors in any way, (xii) contain any content that is illegal, promotes illegal activity, misleading, inaccurate, or infringes on the legal rights of others; or (xiii) otherwise create liability for TROPHiT (together “Prohibited Uses”).Without derogating from any other right or  remedy of TROPHiT under this Agreement or applicable law, and while TROPHiT does not intend, and does not undertake, to monitor the Partner’s or any other third party use of the Solution and/or Services, if TROPHiT is notified or otherwise becomes aware and determines in its sole discretion that any or all of the Partner’s use, and/or the Virtual Goods and/or Advertiser Content or Advertiser’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features may constitute a Prohibited Use. TROPHiT may reject, remove, withdraw from, restrict Redemptions and/or restrict generation of new Vouchers or content, any of the foregoing with no liability to TROPHiT. Partner will abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection and use of information from end users. Partner shall protect and hold harmless TROPHiT and its officers, shareholders and affiliates from any and all liability which may arise in connection with Partner conduct, including, in connection with or a result of matters relating to privacy. TROPHiT will have no obligation to process a request for Campaign, Advertiser Content and/or Virtual Goods that are not sent in compliance with the requirements of this Agreement and/or applicable law.

4.3.           Partner will not, and will not allow any third party to: (a) directly or indirectly access, launch and/or activate the Solution and/or Services through or from, or otherwise incorporate the Solution and/or Services in, any software application, website or other means only to the extent expressly permitted herein; (b) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for timesharing, service bureau or other unauthorized purposes the Solution and/or Services or access thereto; (c) directly or indirectly generate queries, or impressions of or clicks on ads, including without limitation Solution and/or Services Ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro Solution and/or Services, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Solution and/or Services Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; or (e) otherwise engage in any illegal activity.

4.4.           Partner is liable and will indemnify TROPHiT and its shareholders, directors and employees from and against any and all losses, costs, liabilities or expenses (including, without limitation, reasonable attorneys’ fees), which it or they may incur, arising out of any and all claims by a third party of a breach of this Agreement, including but not limited to Section 4.2 above.  In the event of a claim, TROPHiT shall notify Partner of such claim and shall reasonably cooperate with Partner, at Partner’s expense, in the defense and/or settlement of such claim.

4.5.           IMPORTANT NOTICES AND DISCLAIMERS BY TROPHIT. Without derogating from any other provisions limiting liability under this Agreement or otherwise, Partner hereby acknowledges and waives any claims in connection with the following:

(a)             Partner (and NOT TROPHiT) is responsible for the impressions, optimization and targeting of Campaigns and/or related activities, distribution or displays and therefore no guanratee or promises are made as to where any or all of the Advertiser Content, Virtual Goods, Campaigns or any other related materials shall be displayed. No promises or guarantee are made as to exact timing of display of any of Campaigns or related materials, or as to the demographics of Third Party App/Ad Network Users who shall receive access to any of the foregoing (even where Partner indicated any specific preferences to that effect).

(b)             The provisions, availability and quality of the Service, the Solutions and/or any Campaigns is relied upon the availability, as well as the features, terms and conditions, requirements, capabilities and specifications of third party providers, such as Third Party Apps Developers, Ad Networks, tracking companies, developers of operating systems and mobile platforms and devices, app stores operators and providers, providers of hosting services, providers of payment solutions, etc. (“Third Party Providers”). Without derogating from any other provisions limiting liability under this Agreement, TROPHiT is not and shall not be liable for any acts or omissions of such Third Party Providers (and/or to the mere availability of services, products or platforms provided by such Third Party Providers), and/or to any effect or adverse results which the acts and omissions of such Third Party Providers may have on the Service, the Solution and/or any Campaigns, including on the availability and quality of any of the foregoing. Any and all services, products and platforms provided by Third Party Providers is subject to the applicable separate terms and conditions of such applicable Third Party Provider.

(c)             Partner is responsible to carefully review the features and capabilities of the Service and Solution and advise its Direct Advertisers appropriately. Without derogating from any other provisions limiting TROPHiT liability under this Agreement, Partner agree and acknowledge that TROPHiT does not make any warranty or representation that the Service and Solution shall support or be compatible with any future versions of any operating systems, mobile devices, or other third party platforms, or with any changes to resolutions or other specifications of any of the foregoing.

(d)             Partner hereby acknowledges that certain percentage of Third Party App/Ad Network Users may not be able to actually receive the Virtual Goods despite the fact that they claimed it and entered the Advertiser App. In such event Advertiser is requested to notify TROPHiT, which shall try (if reasonably possible) to resolve this matter (but to avoid any doubt TROPHiT makes no guarantees that it shall resolve such matter), however in any event such Redemption by the Third Party App User shall be counted as part of the budget of the Campaign.

(e)             Partner hereby acknowledges that TROPHiT relies on information to be received from third party tracking companies, with which the Advertiser works, to provide all relevant information (such as device identifier (IFA, ANdriod ID), source of media, name of Ad Network, Voucher Code, etc.) regarding the Third Party Add Users (“Tracking Companies”). TROPHiT shall not be responsible for any failures, errors, omissions or other defects or liability which may arise from acts or omissions of any third parties, including but not limited to any Ad Networks,  Tracking Companies  or media or for any failure, for any reason, resulting from the interaction with any of such third parties, including but way of example only if Tracking Companies drop/change features that break the TROPHiT integration. Furthermore TROPHiT does not undertake that it supports interaction with all Tracking Companies. Without derogating from the generality of the foregoing, the Partner acknowledges that it is known that certain   percentage of devices shall not be correctly recognized and that such incorrect recognition may adversely influence the ability of the Solution and Services to perform properly, and that TROPHiT shall not be responsible or liable for such failures and any resulting damages.

4.6.           DISCLAIMER OF WARRANTY. TROPHiT HAS NO RESPONSIBILITY TO REVIEW OR APPROVE ANY AD NETWORKS, THIRD PARTY APPS AND/OR ANY OTHER THIRD PARTY, AND/OR THEIR CONTENT FOR ANY PURPOSE.  THE SOLUTION AND THE SERVICES ARE PROVIDED AND/OR USED “AS IS” AND TROPHiT GIVES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ARISING BY A COURSE OF DEALING OR TRADE USAGE AND DOES NOT GUARANTEE THE EFFECTIVENESS OF THE SOLUTION OR THE SERVICES. TROPHiT DOES NOT REPRESENT OR WARRANT THAT THE SOLUTION OR THE SERVICES WILL MEET PARTNER’S REQUIREMENTS OR IS ERROR-FREE AND PARTNER ASSUMES THE RISK OF ANY AND ALL CONSEQUENTIAL OR INCIDENTAL DAMAGE OR LOSS FROM USE, OR INABILITY OF A THIRD PARTY APP DEVELOPER OR AD NETWORK OR A THIRD PARTY APP/AD NETWORK USERS TO USE, THE SOLUTION OR SERVICES OR USE OR REALIZE ANY VIRTUAL GOODS.

5.               DISCLAIMER OF LIABILITY; LIMITATION OF LIABILITY

IN NO EVENT SHALL TROPHIT BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR TORT DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, IN CONNECTION WITH OR ARISING OUT THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL TROPHIT’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE CONSIDERATION ACTUALLY PAID BY PARTNER TO TROPHIT IN THE 3 MONTHS PRECEDING THE OCCURENCE OF THE APPLICABLE LIABILITY.

6.               Partner’s Cooperation.

Without derogating from any of Partner’s undertakings under this Agreement, Partner hereby undertakes:

6.1.           To provide TROPHiT with all necessary co-operation in relation to this Agreement and providing TROPHiT with accurate reliable information; and

6.2.           All necessary access to such information as may be required by us in order to supply the Services;

6.3.           Ensure that Partner’s employees and officers use the Solution and Services in accordance with this Agreement and you shall be responsible for any such employees’ or officers’ breach of this Agreement;

6.4.           To allocate the necessary resources to educate and train Partner’s relevant staff on how to operate the Solution;

6.5.           To only operate the Solution according to instructions received from TROPHiT (regardless of whether the Solution can technically be operated differently), including, without limitation, complying with the restrictions as may be presented by third parties, such as tracking providers, traffic sources, OS or device manufacturers. Partner also agrees to comply as soon as possible with any changes to such instructions when they are made by TROPHiT.

6.6.           To always mention TROPHiT as the technology enabler of any VDM Service it offers its Direct Advertisers, regardless of the offer medium, such as but not limited to: oral, web pages, digital or hardcopy presentations, deck or media kit documents, posters, blogs, videos and articles. Partner agrees to always follow TROPHiT’s brand guidelines when performing such mentions, as well as to update its marketing material as soon as possible if and when TROPHiT brand guidelines change.

6.7.           To embed the VDMP Badge in compliance with TROPHiT’s brand guidelines and to allow it to track the badge’s own impressions, using TROPHiT’s analytic tool of choice, e.g. Google Analytics

6.8.           To reference TROPHiT as the source (e.g. “Source: TROPHiT”) of any marketing material it receives from TROPHiT, including by not limited to, case studies, creatives, articles, blogs or videos, which is later incorporate in The Partner’s own marketing material6.9.           To be solely responsible for uploading data (including Advertiser Content) to the Services and Solution and procuring and maintaining your network connections and telecommunications links from your systems to the Solution and Services, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet; and

6.10.           To be solely responsible for making and retaining backup copies of all data uploaded to the Services and Solution.

6.11.           To be solely responsible and liable for any and all commercial, technical and other activities, interaction, contracting, etc. vis-à-vis any third parties, including, without limitation, Third Party Publishers.

6.12.           TROPHiT may from time to time specify the information necessary for TROPHiT to run Campaigns for You. The information requested may be modified from time to time, but will generally include, but not be limited to, App Name, Operating System (OS), Voucher  quantity, Voucher type, Network name, Original tracking link. Except as otherwise provided herein, TROPHiT shall compile, calculate and electronically deliver data to Partner regarding Campaigns (the “Campaign Data”). TROPHiT’s figures and calculations regarding the Campaign Data shall be final and binding, provided that TROPHiT reserves the right to correct such figures and calculations. Should Partner have any questions regarding the Campaign Data provided by TROPHiT, Partner must submit such questions in writing within fourteen (14) days of receipt of the Campaign Data. TROPHiT will consider such questions in its discretion, but unless TROPHiT expressly determines otherwise in writing, the Campaign Data will be deemed accurate and accepted as such by Advertiser. Notwithstanding the foregoing, Partner may only submit requests for spend/cost adjustments to the Campaign Data where the alleged discrepancy is equal to or above the equivalent of Fifty US Dollars ($50).

7.               Communications

7.1.           As part of Partner registering for the Services and Solutions, Partner agrees that some communications with Partner are required, such as, by way of example and not limitation, customer service messages regarding your account, updates to the Services and Solution and your materials.

7.2.           Partner hereby acknowledge and agree that in connection with the use of the Solution and Services certain information may be collected, including but not limited on the depending, to: (i) device identifier (e.g. ANDROID_ID, APPLE IDFA, ODIN1), depending on the operating system; (ii) user language (e.g. en_US); (iii) type of operating system, user browser and operating system details”, aka HTTP User Agent; (iv) version of operating system (e.g. 5.0, 6.01). Device identifier, custom advertiser user ID is being sent using a secured HTTPS protocol. Such information is being stored in TROPHiT databases together with the details of the Virtual Goods that the corresponding user had retained.

7.3.           Partners agrees that TROPHiT may share data related to use of the Service, with its affiliates, contractors (including Third Party Providers) or agents for the purpose of supporting your use of the Service and to offer or provide you with other related services from TROPHiT or TROPHiT affiliates.

7.4.           Any Advertiser Content and any information collected as per Section 7.2 you submit by any means, except with respect to personal information, will be treated as non-confidential and non-proprietary and may be used by TROPHiT and its affiliates for any purpose whatsoever, including for the development or provision of products and services.  Any personal information submitted by you will be used in accordance with TROPHiT’s then current privacy policy.

7.5.           You hereby grant TROPHiT an irrevocable, worldwide. non-exclusive, fully paid-up, royalty free right and license to use and display your brand name and logo on TROPHiT and/or its affiliates websites, platforms, and publications.

8.               Term and Termination

8.1.           Notice of Termination: This Agreement shall come into force on the earlier of: (i) Partner’s  first use of the Solution and/or Services; or (ii) Partner entry into the Commercial Agreement (“Effective Date”) and shall thereafter remain in force unless terminated by either Party, at its sole discretion for convenience by giving to the other 30 days’ prior notice in writing (including by email) or as otherwise set forth under the Commercial Terms. To avoid any doubt in any event no refunds shall be made and no payment or fees owed to TROPHiT shall be waived in connection with the termination or expiration of this Agreement and/or of any Campaign.

8.2. Upon termination of this Agreement for any reason, any access to the VDMP Program and its related resources, including all access to the Solution, Vouchers Operated by Partner and rights to use TROPHiT’s marketing material, are revoked and Partner may not attempt to make any use of them.

8.2.       To avoid any doubt, Partner is responsible for any and all changes/modification and/or other acts or omissions it may perform through the Solution. For example: (i) if Partner wants to stop/pause a campaign, it is Partner’s responsibility to do so by contacting the relevant Ad Network; (ii) if Partner updates a voucher, Partner is responsible to ensure that its ads are updated as needed; and (iii) Partner is required to maintain the current status of all Vouchers which it Operates, in particular that Vouchers cease to be distributed at such time as the offering underlying them is not longer Redeemable.

8.3.  If any trial period is included in the Commercial Terms, and Partner does not wish to continue using TROPHiT after the trial period, Partner is responsible for stopping all related traffic through any media (including ad publishers, ad networks, ad agencies, Facebook ads, email distribution lists, web sites, fan pages, etc.), which would effectively stop Redemptions. Partner may inform TROPHiT in writing, no later than 2 business days before the trial period expires, their wish to discontinue the trial period, in which case TROPHiT will disable the advertiser’s account at the trial expiration date, effectively disabling any subsequent Redemption attempt by any end users who may still be engaged via Vouchers. If Partner does not stop all related traffic as mentioned above or does not inform TROPHiT as mentioned above, any Redemptions performed after the trial period will be charged as per the commercial agreement with TROPHiT.

9.           Miscellaneous

9.1.           Waiver: The failure by either Party to enforce any provisions of this Agreement or to exercise any right in respect thereto shall not be construed as constituting a waiver of its rights thereof.

9.2.           Governing Law: This Agreement shall be governed by and construed in accordance with the substantive laws of the state of Israel, without regard to its conflict of law principles, and subject to the jurisdiction of the courts of Tel Aviv, unless otherwise determined by the Commercial Terms

9.3.           Assignment: Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party. Notwithstanding the above, such consent shall not be required, in connection with any merger, acquisition, consolidation, reorganization or restructuring, or the sale of substantially all of a Party’s assets.

9.4.           Relationship of the Parties: This Agreement is not intended to create a relationship such as a partnership, franchise, joint venture, agency, or employment relationship. Neither Party may act in a manner that expresses or implies a relationship other than that of independent contractor, nor bind the other Party.

9.5.           Complete Agreement: This Agreement constitute the full agreement and understanding of the Parties and a complete and exclusive statement of the term of their agreement, and no terms, understanding or agreement purporting to modify the terms of this Agreement will be binding unless hereafter made in writing and signed by the Party to be bound.  Unless otherwise expressly stated, this Agreement supersedes all previous or contemporaneous dealings or agreements with respect to the subject matters of this Agreement.

9.6. Amendment: The terms of this Agreement may be changed from time to time by notice from TROPHiT to Partner 30 days in advance, which may be delivered by e-mail or though the interface of the Solution, or (additionally) in any other manner specified in the Commercial Agreement. The revised terms shall become effective at the date designated by such notice. Partner agrees that its continued use of the Solution and/or the Service after the effective date of such new or revised terms shall constitute its consent to such terms.

9.7.           Notices: Any notice required or permitted to be given by either Party under this Agreement shall be in writing and may be delivered by courier, sent by registered airmail letter, telefacsimile or electronic mail. When the notice is sent by telefacsimile or electronic mail, the sender shall confirm the notice by also sending the notice by courier or registered airmail letter.

All notices shall be addressed as follows:

To Partner:   to its Solution account and/or to theaddress, telefacsimile or electronic mail specified during registration process

To TROPHiT:   Bar Kochva 23, Bnei Brak, Israel

Such notice shall be deemed to be given: (a) if sent by registered airmail letter – five (5) days after the day of dispatch; (b) if sent by telefacsimile or electronic mail – on the day of dispatch of the letter of confirmation; or (c) if sent by courier – on the day of delivery to the receiving Party.

9.8.      Severability: If any provision of this Agreement is found at any time to be in conflict with any law or regulation compulsorily applicable to this Agreement, the Parties shall endeavor to amend such provision so that the intent of this Agreement may be carried out to the extent legally possible. The invalidity, because of any such law or regulation, of any provision of this Agreement which is not fundamental to its performance shall not relieve any Party from its obligations under any other provision of this Agreement, nor deprive any Party of the benefit of such other provisions.