Master Service Agreement

  1. Definitions. As used in this Agreement, the following terms shall mean as follows:
    1. “Ad” means any advertisement (in any form) and all text, graphics, images, photos, rich media, video, audio, or other content included therein.
    2. “Ad Agency” means an individual or entity that provides advertising services, such advertising campaign management or placements services, to third-parties.
    3. Ad Inventory” means any digital advertising inventory made available for sale, including, without limitation, on websites and mobile software applications.
    4. Ad Inventory Supplier” means a supplier of Ad Inventory, including without limitation, an ad network, exchange, supply side platform, agency or Publishers.
    5. Affiliate” means, with respect to a party, any person, organization or entity controlling, controlled by or under common control with, such party. For purposes of this definition only, “control” means (i) ownership of at least fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity; or (ii) possession, direct or indirect, of the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity or to otherwise direct or cause the direction of the activities, management or policies of a person, organization or entity, whether through the ownership of voting securities, by contract or otherwise.
    6. Campaign” means an advertisement campaign, including without limitation, the purchase of Ad Inventory for the publication of Ads, conducted by Client by means of the Platform.
    7. “Intellectual Property Rights” means any and all right, title and interest in and to patents, inventions, discoveries, copyrights, works of authorship, trade secrets, Marks (defined below), technical information, data, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, software, code, algorithms, architecture, records, documentation, and other similar intellectual and industrial property, in any form and embodied in any media, whether capable of protection or not, whether registered or unregistered, and including all applications, registrations, renewals, extensions, continuations, divisions or reissues thereof; as well as any moral rights, rights of privacy, rights of publicity and similar rights subsisting therein.
    8. “Publisher” means the owner or operator of a website or mobile software application (or other digital or non-digital medium or publication) which offers Ad Inventory and on which the Ads are served or are to be served.
    9. “Insertion Order” means a separate document signed between the parties providing (among other details) client information and defining campaign fees and payment terms.
  2. Description of the Platform. The Platform is made available through a web portal on Spotad’s website, spotad.co (the “Site“), or other URL Spotad may provide, and includes: (i) the software that is accessible via the Site; and (ii) any products, services, features, content, text, graphics, photos, sounds, videos, interactive features, and the trademarks, service marks and logos (“Marks“), contained in, provided by or made available through the Platform.
  3. Subscription.
    1. Grant of Use and Access. Subject to Client’s compliance with this Agreement, Spotad hereby grants Client, and Client accepts, a non-exclusive, non-transferable, non-sublicensable, and fully revocable right to access and use the Platform during the Term (defined below) for Client’s internal purposes only (except as set forth in Section 3.2 (Ad Agency)).
    2. Ad Agency. To the extent that Client is an Ad Agency, Client may access and use the Platform as set forth in Section 3.1 for the purpose of conducting Campaigns on behalf of its customers (“Agency Customers“) or allow its Affiliates to access and use the Platform, subject to (i) Spotad’s prior written approval of each Agency Customer or Affiliate (as the case may be); (ii) Client’s execution of a written agreement with such Agency Customer or Affiliate at least as protective of Spotad’s rights and interests as under this Agreement and which names Spotad as a third-party beneficiary with the right to enforce the terms of such Agreement against the parties thereto (such agreement, “Agency Agreement“) and (iii) Client’s provision of a copy of such Agency Agreement to Spotad. Client agrees to enforce such Agency Agreement against its Agency Customer or Affiliate (as the case may be) and to be liable to Spotad for any breaches of any such Agency Agreements or any other act or omission of such Agency Customer or Affiliate of Client as if such act or omission had been done by Client.
  4. Support Services. Spotad will, upon Client’s request, use commercially reasonable efforts to provide Client with basic help desk support in the use of the Platform, over the phone or by Webex or any other similar service.
  5. Documentation. To the extent that Spotad makes available Documentation (defined below) to Client, Client may use such Documentation solely for its internal business purposes and solely in connection with its use of the Platform during the Term. Unless the Documentation is separately referred to herein, all references in this Agreement to the Platform shall include the Documentation.  “Documentation” means documentation that Spotad generally makes available to its Platform clients, in print or electronic form, that describes the features and operation of the Platform.
  6. Restrictions. Except as expressly permitted in this Agreement, Client must not, and shall not allow any third party to: (i) copy, give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, transfer or distribute the Platform, or any portion of the Platform, to any third party, or use the Platform in any service bureau or time-sharing arrangement; (ii) circumvent, disable or otherwise interfere with security-related features of the Platform or that enforce limitations on use of the Platform;  (iii) reverse engineer, decompile or disassemble the Platform or any components thereof; (iv) modify, translate, patch, or create any derivative works of the Platform, or any part thereof; (v) use any robot, spider, scraper, or other automated means or manual process to access, monitor, copy or use the Platform or any portion thereof for any purpose; (vi) take any action that imposes or may impose (in Spotad’s sole discretion) an unreasonable or disproportionately large load on the Spotad infrastructure; (vii) interfere or attempt to interfere with the integrity or proper working of the Platform, or any related activities; (viii) remove, deface, obscure, or alter Spotad or any third party’s copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Platform; (ix) use the Platform to develop a competing service or product; or (x) use the Platform in violation of any applicable law. 
  7. Client Account. Client must not allow anyone other than Client’s authorized employees or independent contractors and or those of its Affiliates (in accordance with Section ‎2) (such employees or contractors, “Permitted Users”) to access and use Client’s account on the Platform. Client acknowledges and agrees (i) to keep, and ensure that any Permitted Users keep, all Account login details and passwords secure at all times; (ii) that it will remain solely responsible and liable for the activity that occurs in connection with Client’s Account; and (iii) that Spotad may monitor use of Client’s account, including without limitation, in order to identify or prevent unauthorized or use of Client’s account. Client shall (a) upon Spotad’s request, provide Spotad with details of each Permitted User, including, without limitation, the name title, phone number and email of each Permitted User; (b) promptly notify Spotad in writing if Client becomes aware of, or has reason to suspect, any unauthorized access or use of Client’s Account or the Platform; and (c) cooperate with Spotad to prevent or restrain unauthorized access and use of Client’s Account or the Platform.
  8. Our Privacy Client acknowledges and agrees that Client’s use of the Platform, including, without limitation, any information transmitted to, or obtained or stored by Spotad, is governed by Spotad’s Privacy Policy available at the Site at http://www.spotad.co/privacy-policy/, as may be modified from time to time (“Privacy Policy“). Upon any change to the Privacy Policy, Spotad shall provide Client with written notice. Client’s use of the Platform or the Site following notice of a change shall be deemed as Client’s acceptance of such change.
  9. Client Data and Ads
    1. License. While using the Platform, Client may choose to provide, upload, import, transmit, post, or make accessible (collectively, “Provide”) to Spotad certain data, algorithms or software (“Client Data“) or Ads (collectively, “Client Materials”). Client grants Spotad a non-exclusive license to use, store, display, perform, copy, reproduce, distribute, publish, modify, adapt, and translate the Client Materials in order to provide the Platform to Client, including without limitation, providing Ads to Ad Inventory Suppliers in order to sell and have the Ads published by Publishers.
    2. Responsibility. Client may only Provide Ads which comply with the requirements set forth in Section ‎10 (Ad Requirements) below. Client represents and warrants that: (i) Client owns or has obtained the rights to all of the intellectual property rights subsisting in the Client Materials and to Provide them, including the right to grant Spotad with the license granted in Section ‎1 above, and (ii) the Client Materials do not and will not infringe or violate any (a) patents, copyrights, trademarks or other intellectual property, proprietary or privacy or publicity rights of any third party; (b) any applicable law, regulations or orders.  Client shall remain solely responsible and liable for the use of the Client Materials in relation to the Platform and expressly releases Spotad from any and all liability arising from Spotad’s use of the Client Materials.
    3. Availability of Data and Content. Client acknowledges that: (i) Spotad does not store all of the Client Data or Ads that Client may Provide during Client’s use of the Platform; and (ii) Client is solely responsible for the backup of such Client Materials.
  10. Ad Requirements.
    1. Technical Requirements. Client’s Ads must comply with the technical requirements of Spotad, any applicable Ad Inventory Supplier, or other third parties involved in the transfer and serving of the Ad, including without limitation, restrictions and guidelines on the format or size of the file in which the Ad is provided. Spotad may, but is not required to, display such requirements in the Platform. Ads must also reflect the vendor attributes entered by Client, which Client shall enter correctly.
    2. Prohibited Content. Ads may not: (i) be unfair or deceptive under the consumer protection laws of any jurisdiction or otherwise, or impersonate a person or entity; (ii) create a risk to any person’s or the public’s safety or health, compromise national security, or interfere with an investigation by law enforcement; (iii) contain or be intended to deliver viruses, Trojan horses, time bombs, cancel bots or any other malware or harmful or deleterious programs files; (iv) promote illegal drugs, violate export control laws, relate to illegal gambling or illegal arms trafficking; (vi) be, or contain content which is, unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourage conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is inappropriate; (vii) involve theft or terrorism; or (viii) be otherwise malicious or fraudulent.
    3. Prohibited Campaigns and Behaviors. Ads may not generate fraudulent or otherwise invalid impressions, conversions or redirects (including by sending a user to a landing page other than as specified in the bid request).
    4. Laws and Industry Standards. Ads must comply with (i) the applicable rules of the Ad Inventory Supplier and any other third party with whom the Client seeks to have its Ads served; and (ii) any applicable laws and regulations.
    5. Additional Ad Guidelines. Spotad reserves the right to provide or post amended or additional guidelines, requirements and restrictions for Ads and advertising practices, from time to time, by notice to you (“Additional Guidelines“). All Ads must comply with such Additional Guidelines.
    6. Review. Spotad may, but is under no obligation to, review Ads’ compliance with this Agreement. To the extent Spotad determines, in its sole discretion, that an Ad violates the terms of this Agreement, or would otherwise harm or create liability for Spotad, its third-party service providers, licensors, suppliers, affiliates, customers, Ad Inventory Suppliers, or any other party, Spotad may, reject any Ad before such Ad is served, cease to serve or remove the Ad, even after such Ads have been approved. For the avoidance of doubt, Client (and not Spotad) shall be solely responsible for ensuring that Ads comply with this Section ‎10.
    7. Service Tags. Client may not use third party ad server tags without approval from Spotad.
  11. Third-Party Services and Plug-ins. The Platform may enable Client to use third-party services, tools, or plug-ins, or to connect its Account with a third-party website or service or to have a third-party website or service send information to the Platform (all of such party tools, plug-ins, websites, or services, “Third-Party Services“). To the extent that Client makes use of any such Third-Party Services, Client agrees that it shall be subject to, and shall comply with, (a) any additional terms and conditions presented or displayed to Client by Spotad in connection with a Third Party Service; and (b) the independent terms and conditions and privacy policies of such Third Party Service (“Third Party Terms”). Client acknowledges and agrees that any data, information, content or other material which Client causes to be sent to the Platform shall be deemed “Client Data” under this Agreement and that Spotad shall have no responsibility or liability in connection with such Client Data.
  12. Title.
    1. Platform. The intellectual property and all other rights, title and interest of any nature in and to the Platform, and any related content, and services provided or made available by Spotad hereunder, including all modifications, upgrades, customizations and derivative works (whether or not permitted under this Agreement) of the Platform, are and shall remain the exclusive property of Spotad and its licensors.
    2. Client Data and Client Ads. The intellectual property and all other rights, title and interest of any nature in and to the Client Materials are and shall remain the exclusive property of Client.
    3. Feedback. To the extent that Client provides Spotad or its Affiliates with any feedback, ideas or suggestions regarding the Platform or any other of its products or services (collectively, “Feedback“), Client agrees that such Feedback shall be exclusively owned by Spotad, and hereby assigns such Feedback to Spotad and its successors and assigns, and waives, and agrees not to assert any rights Client may have or retain in such Feedback.
  13. Client Reference. Client agrees that Spotad may (i) use Client’s name and logo on its website and in its promotional materials, press releases, presentations or advertisements to state that Client is or has been a Client of Spotad and/or a user of the Platform; and (ii) generally describe Client’s business and use of the Platform. Client agrees to serve as a reference customer of Spotad and shall cooperate with Spotad’s reasonable marketing and referencing requests.
  14. Term. This Agreement shall become effective on the Effective Date and shall remain in effect for a period of one (1) year (“Initial Term“). Following the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (“Renewal Terms“, and the Initial Term, together with any Renewal Terms, the “Term“).   Notwithstanding the foregoing, either Party may terminate this Agreement in accordance with the terms of this Agreement.
  15. Termination.
    1. Termination for Convenience. Either Party may terminate this Agreement for any reason or no reason at all upon thirty (30) days advance written notice to the other party.
    2. Termination for Breach. Either Party may terminate this Agreement upon thirty (30) days written notice to the other Party in the event that such Party has breached any provision of this Agreement, to the extent that such breach remains uncured within the foregoing notice period.
    3. Termination for Material Breach. Spotad may terminate this Agreement immediately upon written notice to Client in the event that Client has materially breached this Agreement. “Material Breach” includes, without limitation, Client’s default in payment of amounts due to Spotad under this Agreement or failure to pay outstanding amounts within thirty (30) days following written notice from Spotad, and Client’s breach of Sections ‎‎6, ‎2, ‎‎‎10.2, and of this Agreement.
    4. Termination for Bankruptcy. Spotad may terminate this Agreement immediately upon written notice to Client, upon the filing or institution of bankruptcy, reorganization, liquidation or dissolution of Client, or receivership proceedings against Client, if Client ceases to operate as a going concern, becomes insolvent or unable to pay its debts, or upon an assignment of a substantial portion of the assets of Client for the benefit of creditors, provided that in the case of involuntary bankruptcy proceeding or receivership such right to terminate shall only become effective if Client consents to the involuntary bankruptcy or such proceeding is not dismissed within sixty (60) days.
    5. Effect of Termination. Upon termination of this Agreement, (i) all amounts owed to Spotad shall become due; (ii) Client shall cease use of the Platform; (iii) Spotad may terminate Client’s account and Client will lose all access to the Platform; and (iv) any active Campaigns conducted by Client shall cease, and Client will lose access to any Client Materials which Client may have Provided and which may be stored on the Platform.
    6. Notice of Termination. Client’s notice of termination should be sent by e-mail to the Spotad account manager designated as Client’s primary Spotad contact..
    7. Survival. This Section ‎7 and Sections ‎6, ‎8‎, ‎‎‎‎9.2, ‎12, ‎13, ‎15.5, ‎18, ‎‎‎‎19, ‎‎20, ‎‎‎21, ‎22, ‎23, ‎‎‎26, ‎25, ‎‎26 and ‎‎27, and any provision so intended, as well any outstanding obligations or rights accrued, shall survive expiration or termination of this Agreement.
  16. Suspension. If Spotad believes (in its sole discretion) that Client may be using the Platform in a manner that may cause harm to Spotad or any third party or expose Spotad to financial or other risk not satisfactorily covered by Client, including, without limitation, submitting a high proportion of unsuccessful bid requests via the Platform, or if Client is in default of its payment obligations hereunder, then Spotad may, without derogating from Spotad’s right to terminate this Agreement under Section ‎15 above, suspend Client’s access to and use of the Platform (including any ongoing Campaigns) until such time as Spotad believes the threat of harm, or actual harm, has passed or Client has paid any outstanding amounts due (as applicable). Client acknowledges and agrees that Client will have no claim against Spotad or its Affiliates in regard to such suspension of service.
  17. Fees and Payment.
    1. Fees. Client’s access and use of the Platform is subject to Client’s payment of the applicable fees separately set in the Insertion Order, attached hereto (“Fees“). The Fees shall be comprised of (i) the costs of the third-party charges incurred for the bidding and purchase of Ad Inventory and serving such Ads, including without limitation, fees paid to Ad Inventory Suppliers (“Procurement Costs“); (ii) fees charged by Spotad for the provision of, and Client’s access and use of, the Platform and its features and services (“Spotad Fees“). The calculation of Fees (including the Procurement Costs) shall be calculated solely on the basis of Spotad’s reporting system. Notwithstanding the foregoing, Customer acknowledges that there may be discrepancies between the Procurement Costs listed in the Platform and those forming the basis for the calculation of the Fees invoiced to Client due to adjustments, chargebacks and refunds with Spotad’s Ad Inventory Suppliers. In the event of discrepancies of any kind and between such data sets, of up to ten percent (10%), Spotad shall not be required to modify or correct any invoices or payment amount due, and Customer waives all claims or demands regarding the same.
    2. Maximum Credit Limit. Client may initiate Campaigns, purchase Ad Inventory, and incur Fees up to an outstanding amount which, in the aggregate, is equivalent to or less than the credit limit set forth in Annex A (“Credit Limit“). Spotad may change the Credit Limit, in its sole discretion, by giving the Client notice through automated digital or electronic means such as by a message within the Platform or by e-mail. To the extent Client incurs or will incur fees in amount exceeding such limit, Client may be required to prepay the applicable Fees to Spotad.
    3. Payment Terms. All payments and deposits made in relation to the Platform (if any) shall be paid in United States Dollars to Spotad’s bank account as notified by Spotad from time to time.  Monies deposited or paid in other currencies will be exchanged to U.S. dollars the exchange rate available to Spotad through the provider of Spotad’s choosing. Payments shall be made without any right of set-off or deduction and are irrevocable and non-refundable. Client acknowledges that payments to Spotad may be subject to deductions for bank fees associated with payment processing which shall be fully borne by Client. Client shall pay all Spotad invoices within thirty (30) days of the date of the invoice. All invoices shall be delivered to Client to the Invoice/Finance contact details for Client set forth in Section ‎25. Client may dispute an invoice solely by notifying Spotad in writing of the amount in dispute, such notice including the reasons for the dispute and sufficient detail to enable Spotad to identify the reason for the discrepancy. All invoices not disputed by Client within seven (7) days of Client’s receipt thereof, shall be deemed accepted by Client. Any amount not paid by Client when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. In the event of any failure by Client to pay any amounts due hereunder, Client shall be liable to Spotad for all costs, expenses, and damages incurred or suffered by Spotad in connection with the collection of such amounts, including without limitation, any fees paid to collection agencies, administrative costs, court costs and reasonable attorney’s fees.
    4. Taxes. All fees payable to Spotad are exclusive of applicable taxes (including without limitation VAT), withholdings or duties.  Client shall be responsible for the payment of all such taxes with respect to Client’s access and use of the Platform, Campaigns and related payments, or the purchase of other services arising out of or in connection with the Platform and Client’s Campaigns, other than taxes based on Spotad’s net income.  In the event that Client is required by applicable law to withhold taxes imposed upon Client for any such payments, then the amounts due to Spotad shall be increased such that Spotad receives an amount equal to the sum it would have received had Client not made any withholding.
  18. Warranty Disclaimer.
    1. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PLATFORM AND ANY PRODUCTS OR SERVICES PROVIDED BY SPOTAD, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OR GUARANTEES OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR TITLE, OR WHICH MAY ARISE IN THE COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED.
    2. CLIENT ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE PLATFORM TO ACHIEVE CLIENT’S INTENDED RESULTS. SPOTAD DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.  SPOTAD DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE REGARDING ANY CONTENT, INFORMATION, OR RESULTS THAT CLIENT OBTAINS THROUGH THE USE OF THE PLATFORM OR OF ANY CAMPAIGN.  CLIENT’S USE OF AND RELIANCE ON THE PLATFORM, CONTENT AND CLIENT DATA, ADS, ALGORITHMS, PLATFORM FEATURES, REPORTS (WHETHER ON AD PERFORMANCE, INTERACTIONS, OR OTHER FIGURES) AND ANY MARKETPLACE MATERIALS IS ENTIRELY AT CLIENT’S SOLE DISCRETION AND RISK, AND SPOTAD SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO CLIENT IN CONNECTION WITH ANY OF THE FOREGOING.
    3. SPOTAD DOES NOT CONTROL, IS NOT RESPONSIBLE FOR, AND DISCLAIMS ALL WARRANTIES AND GUARANTEES OF ANY KIND REGARDING AD INVENTORY SUPPLIERS, OR OTHER THIRD PARTY SERVICE PROVIDERS, AND THE PRODUCTS, SERVICES, DATA, CONTENT OR OTHER MATERIALS PROVIDED OR MADE AVAILABLE, OR THE ACTS TAKEN, BY ANY OF THE FOREGOING.
    4. NEITHER PARTY, NOR ITS AFFILIATES, SUPPLIERS, AND LICENSORS, NOR ANY THIRD-PARTY SERVICE PROVIDERS, SHALL BE HELD RESPONSIBLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply. 
  19. Limitation of Liability.
    1. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, AND EXCEPT FOR CLIENT’S OBLIGATIONS AS SET FORTH IN SECTION ‎‎19, A BREACH OF SECTIONS ‎‎6, ‎7, ‎‎2, ‎‎10.2, ‎‎10.3, ‎10.4 OR ‎23, THE PARTIES’ INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION ‎20, OR A PARTY’S WILFUL MISCONDUCT OR GROSS NEGLIGENCE: (A) NEITHER PARTY, NOR ITS AFFILIATES AND LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, EXEMPLARY OR PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND, OR LOST PROFITS OR REVENUE, ARISING OUT OF THIS AGREEMENT; AND (B)  IN NO EVENT SHALL THE AGGREGATE LIABILITY OF A PARTY, ITS AFFILIATES AND LICENSORS, FOR ANY DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE PLATFORM EXCEED THE TOTAL AMOUNT OF THE SPOTAD FEES PAID BY CLIENT FOR THE PLATFORM DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM, IF ANY.
    2. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (a) EVEN IF A PARTY, ITS AFFILIATES OR LICENSORS HAVE BEEN ADVISED, OR WERE OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES OR DAMAGES; (b) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (c) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY). THIS SECTION ‎19 CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
  20. Indemnification
    1. Client agrees to defend, indemnify and hold harmless Spotad and its affiliates and licensors, and its and their respective officers, directors, agents, consultants and employees from any third party claims, demand, action, suit, and proceedings, and all damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from such claims, which arise from: (i) Client’s use of the Platform, the Client Materials; (ii) Client’s breach of this Agreement; (iii) any gross negligence or wilful misconduct of Client; (iv) Client’s failure to pay Procurement Costs incurred by Client; and, (v) if Client is an Ad Agency, (a) its interaction and/or relationship with, or any claims, demand, action, suit or proceeding brought by, any of its Agency Customers or Affiliates; (b) any gross negligence, wilful misconduct, or breaches of Agency Agreements by such Agency Customers or Affiliates (including, without limitation, any cost or expense to Spotad in enforcing the terms of such Agency Agreement), and (c) any act or omission by such Agency Customer or Affiliate, which if done by Client, would constitute a breach of this Agreement.
    2. Spotad agrees to defend, indemnify and hold harmless Client and its affiliates and licensors, and its and their respective officers, directors, agents, consultants and employees from any third party claims, demand, action, suit, and proceedings, and all court-awarded damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from such claims, which arise from an allegation that the Platform infringes third-party Intellectual Property Rights (“Infringement Claim“). Spotad shall have no obligation or liability with respect to an Infringement Claim that is based upon or results from: (a) the combination of the Platform with any equipment, hardware, firmware, or software not furnished by Spotad; (b) any materials, content or information provided by Client or a third party on Client’s behalf; (c) unauthorized use of the Platform or use in violation of this Agreement; or (d) compliance by Spotad with Client’s instructions or requests. Should the Platform (or any part thereof) become, or in Spotad’s opinion be likely to become, the subject of any Infringement Claim, then Spotad may, at Spotad’s option and expense and without limitation to any other options that may be at Spotad’s disposal, (a) procure for the Client the right to continue using the Platform or such part (as the case may be); or (b) terminate this Agreement and refund to Client the unused portion of any prepaid fees. This Section ‎‎20 (Indemnification) states the entire obligation and liability of Spotad, and the sole and exclusive remedy of Client, with respect to an Infringement Claim.   
    3. The party seeking indemnification under this Agreement (“Indemnified Party“) shall provide the party from whom indemnification is sought (“Indemnifying Party“) (a) prompt notice of the claim; (b) sole and full control of, the defense and/or settlement of the claim; and (c) cooperation and assistance reasonably requested by the Indemnifying Party in the foregoing (at the Indemnifying Party’s expense). The Indemnified Party shall refrain from admitting any liability, or otherwise compromising the defense of any part of the claim, without the prior express written consent of the Indemnifying Party. The Indemnifying Party shall not settle any claim without the prior express written consent of the Indemnified Party, provided such consent is not to be unreasonably withheld, conditioned or delayed.
  21. Spotad reserves the right to access, read, preserve, and disclose any information that Spotad obtains in connection with the Platform as Spotad reasonably believes necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce the terms of this Agreement, including to investigate potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to Client’s support requests, and/or (v) protect the rights, property or safety of Spotad, its users or the public.
  22. Neither party may transfer or assign its rights and obligations under this Agreement without the prior written consent of the other party; provided, however, that either party may, without the written consent of the other, assign this Agreement and its rights obligations hereunder to an Affiliate, or in connection with the transfer or sale of all or substantially all of its business related to this Agreement, or in the event of its merger, consolidation, change in control or similar transaction.   Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each party and its respective assigns.  Any prohibited assignment shall be null and void.
  23. Confidential Information. Each party may have access to certain non-public and/or proprietary information of the other party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (“Confidential Information“).  Each party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party’s Confidential Information from disclosure to a third party.  Except as permitted under this Agreement, neither party shall use or disclose the Confidential Information of the other party except as expressly permitted under this Agreement or by applicable law.  All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing party.  The terms of this Agreement are Confidential Information of Spotad (although Client may disclose the terms herein to its advisors and investors, subject to a confidentiality undertaking at least as restrictive as this Section, in which case Client shall be liable for any act or omission of such advisor or investor as is done by Client).
  24. Non Solicitation. Client acknowledges and agrees that during the Term and for one (1) year following termination, Client will not directly or indirectly: (i) solicit, hire or retain as an employee, consultant or otherwise, any employee of Spotad or induce or attempt to induce any such employee to terminate or reduce the scope of his/her employment with Spotad, whether on its own account or on behalf of others; or (ii) solicit or induce, or attempt to solicit or induce, any consultant, service provider, agent, distributor, customer or supplier of Spotad to terminate, reduce or modify the scope of such person’s engagement with Spotad.

Notice.  Unless otherwise agreed to by the parties, any notice under this Agreement shall be in writing and addressed and delivered to the other party’s address as separately set in the Insertion Order.  Notice shall be deemed to have been received by a party: (i) when delivered personally by hand (with written confirmation of receipt); (ii) on the business day sent, if sent by confirmed email or fax transmission before 5pm (or on the next business day if sent after 5pm); or (iii) on the fifth (5th) business day after which such notice is deposited prepaid in the registered postal system.  Either party may change its address for notice purposes upon issuance of notice thereof in accordance with this section.

  1. Governing Law and Disputes. This Agreement and any disputes between Spotad and Client relating to the Platform shall be governed by the laws of the State of Israel, without reference to its conflict of laws rules. The exclusive jurisdiction and venue for all disputes between Spotad and Client relating to this Agreement and the Platform shall be the courts located in Tel Aviv-Yaffo, and each party hereby irrevocably consents to the jurisdiction of such courts.  Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from these Terms.  Notwithstanding the foregoing, each party reserves the right to seek injunctive relief in any court of competent jurisdiction.

General.  This Agreement: (i) comprises the entire agreement between the parties regarding the subject matter hereof and supersedes all prior understandings, oral and written, between the parties relating to the subject matter of this Agreement; and (ii) may only be modified by mutual consent in writing. The headings used in this Agreement are for convenience only and shall in no case be considered in construing this Agreement.  Each exhibit or annex (“Exhibit”) that is attached hereto is incorporated herein by this reference.  Any capitalized but undefined term in an Exhibit shall have the meaning given to it in this Agreement.  Any purchase order or insertion order (“Order“) entered into between the parties shall be deemed to incorporate the terms of this Agreement.  If an Order contains terms that purport to modify or supplement the terms of this Agreement then those terms shall have no force or effect, unless expressly agreed to in writing by both parties.  In the case of an inconsistency or contradiction between this Agreement and any Order, this Agreement shall prevail. Except for Client’s obligation to pay Spotad, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Nothing herein shall be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party.  If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law.  No failure or delay in exercising any right hereunder by either party shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise.  This Agreement may be executed: (a) in counterparts, both of which taken together shall constitute one single Agreement between the parties; and (b) via facsimile or email, and a facsimile or email copy of either party’s signature shall be deemed and be enforceable as an original thereof.