Terms of Services
PUBLISHER TERMS OF SERVICES
[Last Updated: July 1, 2020]
These Publisher Terms of Services (“Terms”) governs the engagement between PubMax Ltd (“PubMax”, “we” or “our”) and the Publisher identified in the Insertion Order (“IO”) executed between the parties (“Publisher” or “you”), for the purpose of using the Services, as defined below. These Terms, including any exhibits referenced herein, and the IO (collectively “Agreement”) constitutes a legally binding and enforceable agreement PubMax and Publisher. PubMax and Publisher shall each be referred individually to as a “party” and collectively as the “parties”.
1. Scope of Service & Grant of License.
1.1. PubMax is the sole owner and developer of a unique platform and solution enabling publishers to monetize their websites or any other digital assets (“Publisher Digital Assets”) by placing tags, ad materials and advertisement (“Ads”) provided by third party advertisers (“Advertisers”) (collectively: “Services”). Subject to the terms and conditions of the Agreement, PubMax grants the Publisher a revocable, limited, non-exclusive, non-transferable, non- assignable and non-sub licensable license, during the term of the Agreement, to use the Service solely for the purpose of the Agreement (“License”). The Publisher may not use the Service or the Ads in any manner not expressly permitted by the Agreement.
1.2. PubMax, at its sole discretion, is entitled to: (a) determine the scope of the Services provided to the Publisher or otherwise, the features, settings or other tools which are available as part of the Service; and (b) modify, correct, amend, update, enhance, improve, remove, replace or make any other changes to, or discontinue, or cease, temporarily or permanently, the Service, without liability to the Publisher.
1.3. The Publisher acknowledges and agrees that PubMax does not have any obligation to monitor any materials, content or the Ads available through the Service, and though PubMax makes commercial efforts to ensure the Ads’ content shall not contain any harmful or improper content, PubMax shall not be responsible or liable in any manner for the content or any other aspect of the Ads.
2. Intellectual Property Rights
2.1. The Intellectual Property Rights and all other rights, title and interest of any nature in and to the Services (excluding Ads) or any related documentation made available by or on behalf of PubMax hereunder (including all modifications, enhancements, upgrades, customizations and derivative works thereof, and excluding the Content) are and shall remain the exclusive property of PubMax and its licensors. For the purpose of this Agreement “Intellectual Property Rights” shall mean all intellectual property rights of every kind and description, including without limitation: (a) rights in or to trademarks and service marks (whether or not registered), trade names and other designations of source of origin, together with all goodwill related to the foregoing, (b) patents and patent applications, (c) rights in or to copyrights, whether or not registered, (d) rights in or to trade secrets and confidential information, including without limitation know-how, technology methods, ideas and inventions, (e) rights in software and computer code (whether in source code, object code or any other form) and (f) all applications and registrations of any of the foregoing.
2.2. If PubMax receives any feedback (e.g., questions, comments, suggestions etc.) regarding any of the Services (“Feedback”), all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to PubMax and to the extent required by applicable law then you hereby irrevocably transfers and assigns to PubMax all Intellectual Property Rights you have in such Feedback and waive any and all moral rights that you may have in respect thereto.
2.3. Publisher hereby grants PubMax the right to use Publisher’s name and logo when referring to PubMax’x customers in promotions and marketing materials.
2.4. Nothing in this Agreement shall be construed as transferring any right, title or interest to you or any third party, unless explicitly stated hereunder. PubMax and its licensors reserve any and all rights not expressly granted in the Agreement. The provisions of this section shall remain in full force and effect after termination or expiration of the Agreement for whatever reason.
3. Privacy and Data Protection
3.1. When using the Service, the Publisher grants access to data collection from end users, as needed for the purpose of placing the Ads. Hence, to the extent applicable to the parties, the parties shall comply with the terms and condition of the Data Processing Agreement (“DPA”) available at: https://pubmax.com/dpa/, incorporated herein by reference and constitutes and integral part hereof.
3.2. Furthermore, the Publisher acknowledge and agree that the PubMax is solely a service provider, and has no contractual relationship or interaction with end users.
3.3. The Publisher shall enter into an agreement with each end user of the Publisher Digital Asset, which will govern the relationship between the Publisher and the User (i.e., “EULA” or Terms of Service and privacy policies) (“Digital Asset Terms”).
3.5. The publisher is solely responsible for the content and effectiveness of the Digital Asset Terms and will not make any representations or warranties about PubMax or the Service (except as set forth above).
4. Representations and Warranties.
4.1. Each of PubMax and the Publisher represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; and (c) the execution of the Agreement or the performance by it of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject.
4.2. The Publisher further represents and warrants that: (a) Publisher is the owner of each Publisher Digital Asset or it is legally authorized to act on behalf of the owner of such Digital Asset for the purposes of the Agreement; (b) Publisher will comply with all applicable laws, rules and regulations, including without limitation, data protection laws and regulations and intellectual property laws; (c) the Publisher or the Digital Assets will not, directly or indirectly: (i) use the Service for any purpose other than as set forth herein; (ii) copy, execute or perform publicly, make available to the public, reduce to human readable form, emulate, sell, resell, lease, rent, lend, sublicense, make any commercial use, process, adapt, translate, modify, reproduce, map out, reverse engineer, decompile, unlock, reverse compile, disassemble or create derivative works of the Service except as expressly agreed herein; (iii) interfere with or disrupt the operation of the Service, or the servers or networks that host or connect with the Service or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks; (iv) use the Service for any illegal, immoral harmful or unauthorized purpose; (v) represent that the Publisher Digital Asset is endorsed by PubMax or Advertiser and or use PubMax’s name or any other trademarks or service marks without PubMax’s prior written consent; and (vi) use the Service in connection with any Prohibited Material or Fraudulent Activity (as defined below). Further, the Publisher shall not use the Services on any Digital Asset that is directed to individuals under the age of sixteen (16) and the Publisher will not enable the provision of any information from a user that Publisher knows (such as through use of an age-gating feature) has identified himself/herself as being under the age of sixteen (16).
For the purpose of this Agreement “Prohibited Materials” means any material or content, contained in or linked to by Publisher that involves, facilitates, advocates or promotes one or more of the following: (a) false, misleading, deceptive, discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (b) libelous, defamatory, obscene, nudity, pornographic, adult content, sexually explicit or abusive activities; (c) illegal gambling; (d) illegal activities; (e) MP3, MPEG and/or copyrighted materials for download, sale or otherwise, in any case without the permission of the copyright owner or otherwise in violation of applicable law; and (f) a conflict or violation of applicable law or any intellectual property rights or other rights of any person or entity. “Fraudulent Activity” means any Digital Asset or other inventory which is based upon or otherwise hosting, redirecting, linking, involving or facilitating any of the following: (a) Prohibited Materials; (b) virus, malware, trap doors, unwanted program, Trojan horses, spyware, Easter eggs, worms, time bombs or adware or engage any other malicious code intended to create or exploit security vulnerability in the end users’ device, system or otherwise has the potential to damage, interfere with, intercept or expropriate any system data or personal information; (c) any form of downloadable traffic or end user which does not directly engage with Publisher; (d) hacking or pricking; (e) any activity which interferes with the Service or any part thereof, including engaging with or the inclusion or counting of non-human audience or by any other manner of automation; (f) encouraging or incentivizing Users to visit, click or use the Ads or any related or linked content for the purpose of generating Impressions in an unlawful manner; (g) automated or fraudulent tracking methods; (h) use or employ any misleading, fraudulent or inappropriate practices that may deceive the end users; or (i) as otherwise determined by PubMax at it sole discretion.
Failure to comply with the provisions set forth above may result herein (at PubMax’s sole discretion) in the termination or suspension of access to the Service (or any part or feature thereof), without derogating from any other remedy the PubMax is entitled to under the Agreement or applicable law. PubMax reserves the right, in its sole discretion, to withhold any amount of payments it deems to be generated out of Fraudulent Activity or any activity not in accordance with the terms herein.
5.1. Publisher shall be entitled to an agreed fixed percentage out of the Net Revenue derived from the Services, as detailed in the IO. PubMax shall retain the remaining percentage of the Net Revenue. For the purpose of the Agreement:
(a) “Net Revenue” the net revenue actually received, earned and collected by PubMax from Advertiser in relation to a Qualified Transactions as part of the Services, minus refunds, currency conversions and expenses related to such revenue.
(b) “Qualified Transaction” means a transaction that occurs when a bona fide Internet user views or fulfills some kind of actions (as agreed between the parties) in relation to the ad that appears in the Publisher Digital Asset, as reported an tracked by the Advertiser; Without limiting the above, it is hereby clarified that transactions due to Fraudulent Activity, including injection traffic, bot traffic or automatic injections by toolbars shall not be considered Qualified Transactions. In the event PubMax or Advertiser, at their own discretion, shall define a transaction as a non-qualified transaction, such transaction shall not be considered as a payable transaction and the Publisher shall not be entitled to any payment with regards to such transaction.
5.2. Notwithstanding the above, PubMax shall withhold payments and shall be entitled for a refund, in the event (a) payments that were not approved by Advertiser; (b) Advertiser did not complete the payment to PubMax; (c) PubMax determined, at its sole discretion that the Impression, views, actions, etc. were derived or incentivized by Fraudulent Activity or Prohibited Materials; or (d) revenue generated in breach of this Agreement. Furthermore, PubMax may, at its discretion, discount, chargeback or accrue a credit against any Net Revenue already paid to the Publisher for transactions which were deemed to be non-qualified transactions following payment. Any and all payments previously made by PubMax to Publisher on account of Publisher Sites which are subsequently deemed to include non-qualified transactions shall be promptly refunded to PubMax. PubMax shall have the right to off-set any amounts owed to it pursuant to this paragraph against any amounts the Publisher shall be entitled to under this Agreement.
5.3. PubMax will pay Publisher in accordance with the terms as stated in the IO, subject to an applicable invoice issued by Publisher. If the amount payable to the Publisher is less than $500 US, PubMax may roll such amount over to the subsequent payment period until the amount payable reaches a minimum of $500 US. All payments due are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including without limitation VAT) (collectively, “Taxes”). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder.
Calculation of all payments made hereunder to Publisher will be made based solely on PubMax’s or Advertiser’s reporting system and statistics. PubMax will provide Publisher with daily or weekly reports (by email or otherwise), at PubMax’s discretion. Such Reports shall include an estimation of any amounts owed to Publisher under the IO Agreement, and shall be subject to adjustments on behalf of Advertiser.
7. Term, Termination and Renewal.
7.1. This Agreement will commence on the date in which both parties signed the Agreement and will continue in perpetuity unless it is terminated as set forth in the IO (“Term”).
7.2. Without derogating from the above, at any time, PubMax may terminate this Agreement immediately, suspend or terminate, temporarily or permanently limit, access to the Service, if PubMax deems, at its sole discretion, that the Publisher has breached any provisions of this Agreement, without derogating from any other remedies that may be available to PubMax under any applicable law.
7.3. Further, PubMax may at any time, at its sole discretion, cease the operation of the Service or any part thereof, temporarily or permanently.
7.4. PubMax does not assume any responsibility with respect to, or in connection with the termination or suspension of the Agreement or the Service operation and loss of any data.
7.5. Upon termination, by PubMax or by the Publisher, for any reason, the License granted will immediately cease, and the Publisher must cease any use of the Service. PubMax shall pay the Publisher the Net Revenue generated prior to the effective date of termination, according to the agreed payment terms.
7.6. All sections of this Agreement which by their nature are intended to survive termination, will survive termination or expiration for any reason.
In the context of the relationship under this Agreement, either Party (“Disclosing Party”) may disclose to the other Party (“Receiving Party”) certain confidential information regarding its technology and business (“Confidential Information”). The Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its use or provision of the Services. Confidential Information shall not include information that Receiving Party can show: (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information: (b) was received by Receiving Party from any third party without restrictions; (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, regulation or is requested in the context of a law enforcement investigation, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperates in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees and contractors with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. The non-disclosure and non-use obligations set forth herein shall survive the termination or expiration of this Agreement for a period of 3 years. PubMax may disclose the terms of the IO to third party processors on its behalf and to its advisors as necessary
9. Disclaimer of Warranties.
THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT AND TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, PUBMAX MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT OR THOSE ARISING IN THE COURSE OF OR CONNECTED TO ITS PERFORMANCE HEREUNDER, AND DISCLAIMS ANY SUCH WARRANTIES. IN ADDITION, PUBMAX DOES NOT WARRANT THAT: (I) THE SERVICE WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED; (III) THE PUBLISHER WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM ITS USE OF THE SERVICE; (IV) ANY SPECIFIC CONTENT, SERVICE OR FEATURE WILL BE MADE AVAILABLE. IN ADDITION, PUBMAX MAKES NO GUARANTEE REGARDING THE LEVEL OF IMPRESSIONS OF, ACTIONS OR VIEWS ON ANY AD, THE TIMING OF DELIVERY OF SUCH IMPRESSIONS, ACTIONS AND/OR VIEWS AND THE REVENUE FOR THE PUBLISHER. . PUBMAX IS NOT RESPONSIBLE FOR ANY WEBSITES, APPLICATION(S) OR CONTENT THAT CAN BE LINKED TO OR FROM THE ADS OR FOR THE RESULTS OF ANY ACT OR OMISSION OF ANY ADVERTISER OR ANY OTHER PROVIDER OF OR FOR PUBMAX.
10. Limitation of Liability.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL PUBMAX OR ITS SUBSIDIARIES, SHAREHOLDERS, DIRECTORS, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND PERMITTED ASSIGNEES (COLLECTIVELY, “COMPANY GROUP”) BE LIABLE TO THE PUBLISHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING TO ANY DAMAGES FOR THE USE OR INABILITY TO USE THE SERVICE OR ANY PART THEREOF, LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, SYSTEM FAILURE OR COSTS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, THE SERVICE OR ANY PART THEREIN UNDER ANY THEORY OF LIABILITY, INCLUDING FOR CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE COMPANY GROUP WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. PUBMAX WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED TO THE PUBLISHER, A USER OR ANY OTHER PERSON AS A RESULT OR IN CONNECTION WITH THE SERVICES OR ADS. THE PUBLISHER’S USE OF THE SERVICES AND ADS ARE ENTIRELY AT ITS OWN RISK. WITHOUT DEROGATING FROM THE FOREGOING, AND OTHER THAN IN CASES OF WILLFUL MISCONDUCT, PUBMAX’S MAXIMUM AGGREGATE LIABILITY FOR ANY DAMAGES ARISING UNDER THE AGREEMENT WILL BE LIMITED TO THE PAYMENTS MADE TO PUBLISHER DURING THE PERIOD OF TWO (2) MONTHS IMMEDIATELY PRECEDING THE FIRST CLAIM TO ARISE UNDER THIS AGREEMENT.
Publisher shall indemnify, defend, and hold PubMax and each of its affiliates and their respective directors, officers, shareholders, employees, agents and representatives, harmless from and against any claim, action, loss, liability, damage, penalty, cost or expense (including reasonable legal fees for attorneys) that PubMax may suffer or incur as a result of: (a) any breach or alleged breach of the Agreement; (b) any negligence or willful misconduct of the Publisher; (c) any alleged or actual violations by the Publisher or the Publisher Digital Asset of any applicable law, regulation or rule,; or (d) any infringement of third party rights, including intellectual property rights and privacy rights, resulting from the Publisher’s actions or omissions. Publisher will fully cooperate with PubMax in the defense and settlement of any third party claim and at PubMax’s demand will assume responsibility for the investigation, preparation, defense, trial and settlement of such claim, with the express provision that Publisher will not settle the claim without the PubMax’s prior written explicit approval.
PubMax reserves the right to modify, correct, or amend these Terms at any time. The most current version of these Terms will always be posted and any changes will be indicated under the “Last Updated” date above. It is your responsibility to ensure that you are familiar with the most current version of the Terms. Your continued use of the Services following an updated version of these Terms was posted, shall constitute your express agreement to be bound by the updated Terms. In the event that, subject to PubMax’s sole discretion, substantial changes were made, PubMax may send or otherwise post an applicable notification.
13.1. Dispute Resolution. This Agreement is governed by and construed in accordance with the laws of the State of Israel without giving effect to its conflict of laws provision. Any dispute arising in connection to the Agreement shall be brought exclusively before the applicable courts in Tel – Aviv, Israel and both parties hereby consent to such jurisdiction and venue.
13.2. Assignment. The Publisher may not assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void or a material breach of this Agreement, provided however that consent is not required in the case of merger, acquisition or sale of all, or substantially all, of the Publisher’s assets, stock or business, and a notice shall be sufficient.
13.3. Force Majeure. Neither party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder due to any condition beyond its reasonable control, including without limitation to, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war and governmental action.
13.4. Relationship of the Parties. The parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other, nor shall either party have any right or authority to create any obligation on behalf of the other party.
13.5. Severability. If any provision of the Agreement is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise unenforceable, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions will not be affected and will continue in full force and effect.
13.6. Waiver. The failure to require performance of any provision of the Agreement shall not affect a party’s right to require performance at any time thereafter; nor shall a waiver of a breach of any provision constitute a waiver of the provision itself or a waiver on another occasion;
13.7. Marketing Materials, Press Releases: The Publisher hereby grants PubMax with the license to use the Publisher’s name, the Publisher Digital Asset name, icons and images, etc. for PubMax’s marketing and promotional purposes, including, without limitations, for the purpose of press releases or public announcements related to the Agreement.