This Advertiser Agreement (the “Agreement”) is made between you (both the individual using the Solution (defined below), and any legal entity on whose behalf you as an individual is acting) (hereinafter: “You” or “Your” or “Advertiser”) and Kankado Cellular Solutions Ltd., a company registered in Israel, operating the TROPHiT website, service and software (“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 TRHOPHiT website.
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING, AND/OR BEFORE USING THE SOLUTION, THE SERVICE OR ANY PART THEREOF. THE SOLUTION IS COPYRIGHTED AND LICENSED (NOT SOLD). TAKING ANY STEP TO USE AND/OR LOG-IN TO THE SOLUTION CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. YOUR USE OF THE SOLUTION AND SERVICE IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SOLUTION AND SERVICES.
ALL USE OF THE SOLUTION SHALL BE SUBJECT TO THE SPECIFICATIONS, FEES, FEATURES, SCOPE, DURATION AND SUCH ADDITIONAL TERMS AND CONDITIONS, WHICH WERE SPECIFIED DURING YOUR REGISTRATION TO PURCHASE YOUR RIGHT TO USE THE SOLUTION (“COMMERCIAL TERMS”),. THE TERMS AND CONDITIONS OF THE COMMERCIAL TERMS ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT, AND ANY REFERENCE TO “AGREEMENT” SHALL ALSO REFER TO THE COMMERCIAL TERMS.
TO AVOID ANY DOUBT, IF AND WHEN AN ADDITIONAL USER SHALL BE ADDED BY ADVERTISER (INCLUDING BY ANY OF ITS PERSONNEL) TO ADVERTISER’S ACCOUNT, ANY SUCH ADDITIONAL USER SHALL ALSO BE DEEMED AS ADVERTISER, AND AS SUCH SHALL BE ALSO BE BOUND BY THIS AGREEMENT EVEN WITHOUT ANY FURTHER ACTION OR SPECIFIC WRITTEN OR OTHER CONSENT.
Whereas TROPHiT has developed certain proprietary technology, know how and systems known as TROPHiT,(the “Solution”), that allows Advertisers to offer and distributue through publishing partners,such as ad networks, DSP’s, RTB and more. to users of third party websites, and software (e.g. games and/or apps)(“Third Party Apps” and “Third Party App/Ad Network Users”) certain virtual goods,content items, and/or items vouchers (e.g. in the form of discounts, prizes or other benefits) (“Virtual Goods”) for Advertiser’s own app, software or website (“Advertiser Apps”) .
Now therefore it is agreed between the Parties as follows:
1.1. Subject to the terms and conditions and Annex A of this Agreement, TROPHiT shall enable the Advertiser the offering and distribution of Virtual Goods and related content offering of the Advertiser (i.e. Advertiser Content as defined below) through publishing partners by use of the Solution,in such format and manner as enabled by the Solution,inter alia to enable Third Party App/Ad Network Users to potentially obtain one or more Virtual Goods from Advertiser (the “Services”).
1.2. Advertiser shall cooperate with TROPHiT, if and as required by TROPHiT from time to time to resolve any intergation or use issues, including vis-à-vis Ad Networks and/or to otherwise enable on-going activities and operations under this Agreement.
1.3. The Advertiser (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 parties such as third party ad networks (“Ad Networks”) and developers/owners of Third Party Apps.
Without derogating from the generality of the foregoing, Advertiser is responsible and liable to for defining/marking a campaign as Facebook-originated as per TROPHiT requirements during the definition of any specific Campaign and/or Virtual Content.
2. License grant and IP rights
2.1. Advertiser shall retain all right, title and interest in and to any multi-media images, graphics, text, data or other objects originated by or transmitted by Advertiserto TROPHiT under this Agreement (“Advertiser Content”). 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 ofthis 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 tothe terms and conditions of this Agreement, TROPHiT hereby grants to Advertiser, a non-exclusive, non-transferable, license, without right to sub-license, for the term specified under the Commercial Termsto use the Solution in connection with Advertiser’s actually paid-for advertising campaigns which are run by Advertiser through the Solution (“Campaign(s)”) (in the scope and manner specified under the Commercial Terms .
2.2. Restrictions: Other than the rights expressly licensed hereunder to Advertiser, no other rights or interests whatsoever in the Services, Solution, and/or any component thereof, are transferred or granted to Advertiser. Without limiting the foregoing, Advertiser 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.
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 in any copyrights, notices, trademarks or other proprietary or restrictive notices or legends which are owned or controlled by TROPHiT.
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.
In consideration for the rights and services granted and/or to be provided underthis Agreement, Licensee shall pay to Company the fees specified under the Commercial Terms in accordance with the payment and other terms specified thereunder.
TROPHiT will provide an invoice to the advertiser, at the end of each month. The invoice needs to be paid by the advertiser within 15 business days from receiving the invoice.
You must add applicable Vat to such amounts as required by law. All amounts payable hereunder are exclusive of all applicable taxes and government charges, and you shall make payment to TROPHiT without deduction for and free and clear of any such amounts.
4. Advertiser Representations and Warranties and Indemnification; TROPHiT Disclaimer and Limitations
4.1. Advertiser 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 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) Advertiser 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 Advertiser, and Advertiser agree 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.
4.3. Advertiser 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 co- branding, 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. Advertiseris 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 Advertiser of such claim and shall reasonably cooperate with Advertiser, at Advertiser’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, Advertiser hereby acknowledges and waives any claims in connection with the following:
(a) Advertiser (and NOT TROPHiT) is responsible for the impressions, optimization and targeting of Advertisers Campaigns and/or related activities, distribution or displaysand therefore no guanrateeor promises are made as to where any or all of the Advertiser Content, Virual 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 Advertisers 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 Advertiser 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 Solutionand/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) Advertiser is responsible to carefully review the features and capabilities of the Service and Solution. Without derogating from any other provisions limiting TROPHiT liability under this Agreement, Advertiser 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) Advertiser 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) Advertiser hereby acknowledges that TROPHiT relies on information to be received fromthird 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 Advertiser 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 SOLUTIONOR THE SERVICES WILL MEET ADVERTISER’S REQUIREMENTS OR IS ERROR-FREE AND ADVERTISER 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
OTHER THAN IN THE EVENT OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY 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 ADVERTISERTO TROPHIT IN THE 3 MONTHS PRECEDING THE OCCURENCE OF THE APPLICABLE LIABILITY.
6. Advertiser’s Cooperation.
Without derogating from any of Advertiser’s undertakings under this Agreement, the Advertiser hereby undertakes:
6.1. To provide us with 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 Advertiser’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 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
6.5. To be solely responsible for making and retaining backup copies of all data uploaded by you to the Services and Solution.
6.6. To be solely responsible and liable for any and all commercial, technical and other activities, interaction, contracting, etc.vis-à-vis any third parties such as Ad Networks,Tracking Companies, Ad Networks and and developers/owners of Third Party Apps.
6.7. 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 Advertiser regarding Advertiser Campaigns including(the “Advertiser Data”).TROPHiT’s figures and calculations regarding the Advertiser Data shall be final and binding: provided that TROPHiT reserves the right to correct such figures and calculations. Should Advertiser have any questions regarding the Advertiser Data provided by TROPHiT, Advertiser must submit such questions in writing within fourteen (14) days of receipt of the Advertiser Data. TROPHiT will consider such questions in its discretion, but unless TROPHiT expressly determines otherwise in writing, the Advertiser Data will be deemed accurate and accepted as such by Advertiser. Notwithstanding the foregoing, Advertiser may only submit requests for spend/cost adjustments to the Advertiser Data where the alleged discrepancy is equal to or above the equivalent of Fifty US Dollars ($50) (“Discrepancy Threshold”).
7.1. As part of Advertiser registering for the Services and Solutions, Advertiser agrees that some communications with Advertiser 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. Advertiser 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), depnding 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 IDis 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. Advertiseragree that TROPHiTmay 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.
7.5. You hereby grant TROPHiT an irrevocable, worldwide non-exclusive, fully paid-up, royalty free rights 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) Advertiser first use of the Solution and/or Services; or (ii) Advertiser execution of the Commercial Terms (“Effective Date”) and shall thereafter remain in force unless terminated by either Party, at its sole discretion for convenience by giving to the other prior notice in writing 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. To avoid any doubt, Advertiser is responsible for any and all changes/modification and/or other acts or omissions it may perform through the Solution. For example: (i) if Advertiser wants to stop/pause a campaign, it is Advertiser’s responsibility to to do so by contacting the relevant Ad Network; (ii) if removes links from the Solution Advertiser is responsible to ensure that these links are not being served by Ad Networks before asking to remove them (or removing them via the dashboard).
8.3. If the advertiser does not wish to continue using TROPHiT after the trial period, they are 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. The advertiser 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 the advertiser 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.
9.1. 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.
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. 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 Advertiser: to its Solution account and/or to the specified during registration process
To TROPHiT: Hatnufa 13, Yokneam Ilit, Yokneam
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.
9.7. 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.