DMG’s Terms & Conditions
1. Ads. Prior to the effective date of the campaign (as specified in the Insertion Order) Advertiser will create and deliver to DMG all content required for any ads in the form requested by DMG and in accordance with any specifications and policies set-forth by DMG.
2. Advertising Policy. Advertiser is solely responsible for the ads content, any website or application or other destination that the ads direct to, and any services and products that are offered in connection with the ads. DMG will not be required to publish any ad that is not in accordance with its policies, restrictions or specifications as determined in its sole discretion. Notwithstanding the foregoing, DMG’s policies, specifications and/or recommendations should not be construed as legal advice, or as sufficient guidelines to ensure that such ads comply with applicable law. DMG shall have no obligation to monitor or edit the ads, and DMG assumes no obligation and hereby disclaims any liability for Advertiser’s use or placements of any ads. DMG will determine the measurement of the impressions, clicks, offers, installs, conversions or other results and all payments will be based on such numbers and shall be final. DMG shall not be responsible for any damage or loss as may be caused by the disruption of ads or the removal of ads by any third party, including but not limited to, any failure on the part of an advertising channel.
4. Distribution of Ads. Positioning of the ads is at the sole discretion of DMG and its affiliates. DMG does not guarantee that Advertiser’s ads will be available through any specific part of the networks upon which DMG places the ads, the timing of delivery of the ads and/or the placement and positioning of the Advertiser’s ads. DMG reserves the right to approve, omit, edit or reject any of Advertiser’s ads for any reason at any time, including the right to make minor changes to the ads in order to optimize campaign results, with or without notice to the Advertiser. In addition, DMG reserves the right, at any time, to remove any of Advertiser’s ads if DMG determines, in its sole discretion that the ad or any portion thereof, violates any of DMG’s policies or may result in liability to DMG. In addition, DMG shall have the absolute right to reject any URL link embedded within any ad. DMG’s failure to reject, cancel, approve, omit, edit or modify shall not be construed as an acceptance of an ad, nor shall it negate other provisions of the IO or these terms and conditions, specifically with respect to liability. Publisher or its affiliates may reject or remove any ad for any or no reason. Advertiser agrees that DMG shall not be responsible for any discrepancy in targeting criteria, which is the result of the publisher’s reporting methods.
5. No Guarantee. To the fullest extent permitted by law, DMG disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) costs per click; (ii) click through rates; (iii) availability and delivery of any impressions; (iv) clicks; (v) conversions or other results for any ads; and (vi) the adjacency or placement of ads within the advertising networks used by DMG. Advertiser acknowledges, agrees and accepts the risk that prohibited or improper activity can be generated by third parties, and any credits or refunds for such activity are at DMG’s sole discretion. DMG shall have no responsibility or liability in relation with any third party click fraud or other improper actions that may occur.
6. Payments. Advertiser will make payments to DMG in accordance with the payment terms in the IO. Payments are due based on Advertiser’s ads placed by DMG regardless of whether Advertiser has collected payment from its clients. Advertiser’s failure to make timely payment and/ or any charge-back by Advertiser shall constitute a material breach of the agreement between the parties. Advertiser will be responsible for all reasonable expenses (including, but not limited to, attorneys’ fees and costs) incurred by DMG in collecting such amounts due plus interest at the rate of eighteen percent (18%) per annum or the maximum amount permitted by law, whichever is less.
All amounts payable represent the net amounts to be received by DMG and do not include any current or future customs, duties, charges or taxes, including, but not limited to, sales tax, withholding taxes, VAT, and any other taxes and transfer charges (including to correspondent banks), which may apply. All transfer charges upon payment (including correspondent banks) shall be borne by the Advertiser. Advertiser shall pay DMG the full amount invoiced, without offset or deduction for any taxes or charges as described above.
7. Confidentiality. Advertiser agrees to keep this agreement and all of its terms, numbers and information, confidential. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation prototypes, samples, technical data, trade secrets, know-how, actual and anticipated research, developments or products, product plans, services, software, inventions, processes, discoveries, formulas, architectures, concepts, ideas, designs, drawings, personnel, customers, markets, marketing plans, distribution methods, business plans, finances and manufacturing plans). Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not include any information which (i) was publicly known prior to the time of disclosure by the disclosing party; (ii) becomes publicly known after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (v) was independently developed by the receiving party without use of the disclosing party’s Confidential information; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. Each party shall use Confidential Information disclosed to it by the other party only for the purpose of the services of this Agreement and the Insertion Order signed by the parties. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.
8. NO WARRANTY. DMG’s services provided hereunder are provided on an “as is” and “as available” basis, without any warranty of any kind and without any guarantee of continuous or uninterrupted display or distribution of any ad. In the event of interruption of display or distribution of any ad, DMG’s sole obligation will be to restore service as soon as practicable.
9. Limitation of Liability. In no event shall DMG be liable for any consequential, incidental, indirect, punitive, special or other similar damages and any loss of profits, loss of revenue, loss of use, whether under tort, contract or other theories of recovery, even if it has been aware or advised of the possibility of such damages. THE CUMULATIVE LIABILITY OF DMG FOR ALL CLAIMS RELATING TO THE IO, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY ADVERTISER UNDER THE IO DURING THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
10. Indemnification. Advertiser agrees to defend, indemnify and hold harmless DMG and each of its affiliates and their respective, directors, officers, shareholders, employees and representatives from and against any and all damage, injury, liability, costs and expense (including reasonable attorneys’ fees) or other claim, whether or not involving a third party claim, related to any allegation relating to Advertiser’s breach of the terms of the IO or the terms herein, the failure to perform any obligation undertaken in the IO and/or herein, the content of, or representations made in any ads or Advertiser’s website or other materials, and/or any other content, material, products, services, content linked to from the ads, or information provided, created or used by Advertiser. DMG will have the right to control the defense of any claim involving DMG.
11. Miscellaneous. The IO and these terms will be governed and construed in accordance with the laws of the State of Israel without giving effect to conflict of laws principles. Any dispute or claim arising out of or in connection with an IO or these terms shall be adjudicated in Tel-Aviv-Jaffe. Neither party may assign or transfer its rights under this Agreement without the prior written consent of the other party; provided that such consent is not required in the case of merger, acquisition or sale of all, or substantially all, of the assigning party’s assets, stock or business. The parties hereto are independent contractors and this Agreement does not create an agency, joint venture or partnership. Any notice permitted or required by this Agreement will be in writing and transmitted by e-mail to the receiving party at the address provided. Any such notice will be deemed to have been received on the same business day if sent by during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond the reasonable control of the non-performing party. This Agreement, including all applicable Attachments and addendums hereto, constitutes the entire agreement between the parties concerning the services and related Confidential Information. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. DMG reserves the right to modify, from time to time and in its sole discretion, any of the terms of this Agreement and Advertiser waives the right to receive notifications for changes. In the event that Advertiser continue the use of the services, it shall be deemed as acceptance by Advertiser of the modifications or changes. If Advertiser does not agree to the modifications or changes, Advertiser shall provide DMG with written notification and stop using the services.
The publisher will promote and/or publish the products or services of DMG’s clients according to creative provided by DMG (the “Ads”), all according to the terms hereinafter (the “Services”).
1. Insertion Order and Inventory Availability
1.1 These General Terms and Conditions shall apply to any IO executed from time to time between DMG and the Publisher. 1.2 Acceptance of the IO and these Terms will be deemed the earlier of (i) written approval of the IO by Publisher, or (ii) the display of the first Ad impression by Publisher. Publisher will make its best efforts to notify DMG within 24 hours of receipt of an IO signed by DMG if the specified inventory is not available.
2. Ad Placement
2.1 Publisher will provide DMG at least 15 business days prior notification of any changes to the websites owned, operated or controlled by the Publisher and used for the purpose of the IO or on which the Publisher has contractual rights to serve the Ads (the “Sites”). 2.2 Should such a modification occur with or without notice, DMG may cancel the remainder of the affected placement without penalty within a 10-day notice period. In such case, DMG will not be charged for any affected Ads delivered after such modification. 2.3 The Publisher shall not place Ads adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language or falls within another category stated in the IO. 2.4 In addition the Publisher shall refrain from using the following techniques for the purpose of the Services: Incent traffic, incentivized placement, Ad-exchange, social traffic (Facebook, Twitter, etc…), spam, misleading traffic, Adult content, Push Notifications, App Discovery Traffic, Icon-Drop Traffic, Search engine traffic, Tool-bar traffic, Brand bidding, E-Mailings, Co-Reg, Own Creative (unless DMG’s approval), Redirect Traffic, invalid or duplicate leads, Gateway/Content Lock Traffic, Virtual Currency Traffic, Cash-Backs / GPT, SMS Traffic, P2P sites, File Sharing Sites, Content Locking, Jump pages, Pop up/under traffic (together with the restrictions of section 2.3 above, the “Restrictions”) 2.5 Publisher will use best efforts to comply with the Restrictions with respect to Ads that appear on Sites owned, operated or controlled by the Publisher. 2.6 For Ads shown on Sites owned, operated or controlled by third parties, the Publisher will obtain contractual representations from its participating network publishers that such publishers will comply with the Restrictions above on all sites and provide the remedy specified below to DMG with respect to violations of Restrictions. 2.7 To the extent that DMG and/ or any third party on its behalf, will detect any inappropriate traffic provided by Publisher (or anyone on its behalf) which contained any of the above Restrictions, according to which DMG’s Ads are displayed in connection (directly or indirectly) to such traffic, DMG shall be entitled to terminate this Agreement immediately, without any further notice to the Publisher. In addition, DMG will not pay to the Publisher in consideration for such traffic and the Publisher shall bear full responsibility regarding such traffic towards DMG, its clients or any other third party. 2.8 Without derogating from the aforementioned, DMG shall be entitled to inform the Publisher about such violation and may allow it to remove the Ads and refund any amount, according to DMG’s sole discretion, paid by it in consideration for such violated traffic. 2.9 If Advertising Materials provided by DMG are damaged, Publisher will use commercially reasonable efforts to notify DMG within two (2) business days of its receipt of such Advertising Materials. 2.10 Publisher will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without DMG’s approval. Publisher will use all Ads in strict compliance with these Terms and any written instructions provided on the IO. 2.11 Additionally without prior written permission, it is not permitted to advertise for DMG with any other media (self-) created by Publisher or otherwise acquired that was not provided directly from DMG and approved for these terms. 2.12 Furthermore the Publisher is not allowed to create and/or use all form of advertisement or any other kind of advertisement without prior written consent of DMG. 2.13 Publisher will not use DMG’s or its clients’ trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
3.1 Without prejudice to sections 3.1 and 3.2 above, all invoices pursuant to the IO will be sent no later than 90 days of delivery of all inventory delivered by Publisher (such as impressions clocks or other desired actions) (the “Deliverables”). Publisher acknowledges that failure by Publisher to send an invoice within such period may cause DMG to be contractually unable to collect payment from its advertiser-client. If Publisher sends the invoice after the 90-day period and DMG has not received the applicable funds from the advertiser-client or does not have the advertiser-client’s consent to dispense such funds, DMG will use commercially reasonable efforts to assist Publisher in collecting payment from the advertiser-client or obtaining advertiser-client’s consent to dispense funds. 3.2 Upon request from DMG, Publisher should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms. 3.3 DMG reserves the right to reduce any payments owed Publisher as a consequence of any offsets or non-payments taken by DMG’s clients with respect to the Services. However, DMG undertakes to make every reasonable effort to collect such payments from its clients on a timely basis. 3.4 All payment shall be made only with accordance to the Reports (as detailed in section 4 hereunder). For sums not cleared to DMG, Publisher agrees to cooperate with DMG and provide it all requested documents in order to understand such sums. DMG’s measurement shall suprseads in case of discrepancy.
4.1 DMG will provide Publisher with an access to DMG’s dashboard reporting tool, by providing it password to its account, in order to track all relevant information. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords) (“Reports”). 4.2 It is agreed that the Reports shall be final and shall bind the parties in any manner.
5. Fraudulent Impressions
Any method to artificially and/or fraudulently inflate the volume of impressions or clicks is strictly forbidden. Counts of impressions or clicks will be decided solely on the basis of reports generated by DMG. These prohibited methods include but are not limited to: framing an ad-banner’s click-through destination, auto-spawning of browsers, blind text links, running ‘spiders’ against the Publisher’s own website, automatic redirecting of users, pop-up windows or any other technique of generating automatic or fraudulent (as determined by DMG, acting reasonably, or based on industry practices) click-trough’s and/or impressions. Advertising Material may not be placed on a page which reloads automatically. Publisher may not require users to click on Advertising Material prior to entering a Web Site or any area therein or provide incentives of any nature to encourage or require users to click on Advertising Material. Publisher’s click-through’s of any link other than DMG’s Advertising Material, or use of any other means of artificially enhancing click results shall be a material breach of this Agreement, and upon such occurrence, DMG may terminate this Agreement effective upon delivery of notice. Such termination is at the sole discretion of DMG’s and is not in lieu of any other remedy available at law or equity. DMG ad server will be the official counter for determining the number of Advertising Material delivered under an applicable Order, and amounts payable under this Agreement.
6.1 Publisher will monitor Traffic of the Ads, and will notify DMG either electronically or in writing as soon as possible (and no later than 14 days before the applicable IO end date unless the length of the campaign is less than 14 days) if Publisher believes that an under-delivery is likely. 6.2 If actual traffic for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), DMG shall be granted a credit equal to the value of the under-delivered portion of the IO for which it was charged. 6.3 If DMG has made a cash prepayment to Publisher, specifically for the campaign IO for which under-delivery applies, then, DMG may elect to receive a refund for the under-delivery. 6.4 In a case of violating the 24 hours out clause by the publisher’s side, the publisher will be responsible of any unmonetized fees (requests sent by the publisher that did not convert to impressions) counted by DMG’s ad-network as a result of the violation, The 24 hours out clause also refers to any change or adjustment requested by DMG.
7.1 Either Party will not: (A) use or disclose any information included in the IO of the other Party, or connected with the performance of the Services, for any purpose other than performing under the IO; or (B) use or disclose any user private data in any manner other than in performing under the IO. 7.2 Publisher will require any third party or affiliate used in performance of the IO on behalf of Publisher to be bound by confidentiality and non-use obligations at least as restrictive as those on Publisher, unless otherwise set forth in the IO.
8.1 Publisher will defend, indemnify, and hold harmless DMG, its advertiser-client, and each of its affiliates and representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a third party and resulting from (i) Publisher’s alleged breach of its confidentiality obligations or of Publisher’s representations and warranties herein, (ii) Publisher’s display or delivery of any Ad in breach of Section 2, or (iii) Advertising Materials provided by Publisher for an Ad that: (A) violate any applicable law, regulation, judicial or aDMGnistrative action, or the right of a third party; or (B) are defamatory or obscene. 8.2 DMG will defend, indemnify, and hold harmless Publisher, from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a third party and resulting from DMG’s alleged breach of its confidentiality obligations or of DMG’s representations and warranties herein. 8.3 The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
9. Limitation of Liability
Excluding intentional misconduct, in no event will either party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages. The above limitation of liability shall not apply in the following events: (1) IP infrigment; (ii) Publiher’s have breached section 2 above.
10. Necessary Rights
Publisher represents and warrants that Publisher has all necessary permits, licenses, and clearances, including all intellectual property rights, to sell the traffic specified on the IO subject to these Terms.
11. Entire Agreement
This agreement reflects the sole agreement between the Parties relating to the subject matter and supersedes all prior understanding, writing, proposals, representations or communication, whether oral or written of either party. This agreement may only be amended by a written instrument executed by both parties.
Publisher shall not resell, assign, or transfer any of its rights or obligations hereunder, or transfer such rights or obligations without DMG’s prior written approval. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
Publisher shall keep proper records regarding the nature and origin of all traffic sold to DMG. DMG or its designee may inspect such records to verify reports. Any such inspection will be conducted in a manner that does not unreasonably interfere with Publisher’s business activities.
14. Term and Termination
The Term of this Agreement shall be as defined in the IO. In the event of a material breach by Publisher, DMG may terminate this Agreement immediately without a cure period. In the event of termination, no obligation or liability of DMG shall survive.
15. Governing Laws and Disputes
This Agreement shall be deemed to have been made and entered into in the State of Israel, and the laws of the State of Israel shall govern its construction, validity and enforceability. Should a dispute arise under the terms of this Agreement, the prevailing party shall be entitled to recover its collection, processing, attorney, legal and court costs as well as its attorney’s fees and related costs incurred in any appeal thereof. Both parties agree to the jurisdiction of the Courts of the State of Israel.