Matomy Media Ltd. – Advertiser Terms of Service

  1. 1.    AGREEMENT

1.1. The Matomy Mobile Advertising Network provided by Matomy Media Ltd. (“Service”), owned and operated by Matomy Media Ltd. and its affiliated companies under the name Mobfox (“Matomy”), is provided to you (“Member”, “Advertiser”) under the Terms and Conditions (“Terms”) of this Advertiser Service Agreement, together with the additional terms addendum regarding the use of the Marketplace for Demand Advertisers attached hereto as Annex A to the extent relevant to you if you are a Demand Side Partner (“DSP”) and any additional annexes (collectively, this “Agreement”), and any amendments thereto and any operating rules or policies. Matomy reserves the right, in its sole discretion, to change, modify, add or remove all or part of the Agreement at any time. If this Terms and/or any modification to this agreement is unacceptable to Member, Member’s only recourse will be to terminate this agreement as set forth herein. Member’s continued participation with the Service following Matomy’s posting of a new agreement on Matomy’s site will constitute a binding acceptance of the change.

1.2. By accepting the Terms of the Agreement, the Member:

(a) represents and warrants that Member is of at least 18 years of age;

(b) agrees to provide accurate, current and complete information about Member as prompted by the Account Registration Form;

(c) agrees to maintain and update this information to keep it accurate, current and complete;

If any information provided by Member is inaccurate, not current or incomplete, Matomy has the right to terminate Member’s account.

1.3. By completing the account registration process, and clicking the “register” button, Member agrees to be bound by this agreement and acknowledges the establishment of an account on behalf of such Member (the “Account”).

  1. 2.    DESCRIPTION OF SERVICE

2.1. Subject to this Terms, Matomy may in certain circumstances, including through third parties where appropriate,, promote Advertiser’s products and/or services designated by Advertiser at Matomy Mobile Advertising Platform available at http://www.mobfox.com  (the “Platform”) by placing the Creative (as defined below) in such form and location within the Matomy Mobile Advertising Network as Matomy shall decide, at its sole discretion.

2.2. Editorial Review – Without derogating from any other provision in this Agreement, Matomy reserves the right, without any obligation herein, to review each ad individually, and has the right, to edit, refuse, reject or remove the Advertiser’s ad and any Creative (as defined below) from the Services at any time and for any reason.

2.3. Technical Support - Members may receive technical help and resolve billing inquiries by contacting Matomy Support via the Platform ticketing system. Should Member become dissatisfied with the Service in any way, Member shall contact Matomy support by emailing the relevant email address written below.

2.4. USE OF THE SERVICE SUBMISSIONS         
By submitting material or web page listings to the Service (including information regarding the listing) you are irrevocably granting Matomy, its licensees, and any entities in the Service, the right to use all parts of the material without limitation including, but not limited to, modifying it or using it commercially and authorizing others to do so.

  1. MEMBER REPRESENTATIONS

3.1. Member represents and warrants that:

3.1.1.   Member is the legal owner of the URL or any other digital media source (“Digital Media”) specified in his Advertiser Account, an employee of the legal owner of the Digital Media, or has obtained express written permission from the legal owner of the Digital Media in connection with the use of the Service with the aforementioned domain. Without derogating from any other provision in this Agreement, Member expressly agrees to indemnify Matomy from any claims, losses, damages, including by any third party, arising from or in connection with the use of the Advertiser Service with the specified Digital Media.

3.1.2.   Member is the owner or is licensed to use the entire contents and subject matter contained in any creative such as image, text, programming code, graphic content or any combination thereof (“Creative”);

3.1.3.   any Creative is free of any virus or other any other device that could impair or injure any person, or entity, computer equipment or software;

3.1.4.   any Creative does not violate any law or regulation, including those governing false or deceptive advertising, sweepstakes, gambling, or trade disparagement;

3.1.5.   any Creative does not contain any misrepresentations or content that is defamatory or violates any rights of privacy or publicity;

3.1.6.   any Creative does not contain any child pornography or link to such content;

3.1.7.   any Creative does not contain any linking to software piracy;

3.1.8.   any Creative does not contain or link to any form of illegal activity (i.e., how to build a bomb, hacking, etc.);

3.1.9.   any Creative does not contain any gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm;

3.1.10.   any Creative does not contain any content promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.);

3.1.11.   any Creative does not participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam);

3.1.12.   Member will comply with all laws and regulations that may apply to Internet advertising, including, but not limited to the Children’s Online Privacy Protection Act, the Can-Spam Act, the Federal Trade Commission Act and the Digital Millennium Copyright Act;

3.1.13.   any Creative does not and will not infringe any copyright, trademark, patent or other proprietary right;

3.1.14.   any Creative must comply with Matomy Creative Guidelines attached hereto as Annex B as may be amended from time to time;

3.1.15.   The Member’s links and all advertisements contained in the links shall be in a service compatible format, as such format may be established by Matomy from time to time;

3.1.16.    Member shall comply with the privacy of the online community which is presented in http://www.Matomy Media Group.com/privacy.

 

3.2. Member hereby grants Matomy a non-exclusive, royalty-free, worldwide right and license to reproduce, transmit, distribute, display and otherwise use all or some of the Creative for the purpose of carrying out Matomy’s obligations under this Agreement, including, without limitation, for the purpose of running and managing any campaign.

3.3. Member hereby grants Matomy the right to display Member’s logo and description on Matomy’s website or any other media as part of Matomy’s client list.

  1. 4.    MATOMY REPORT

During the Services, Member will be granted access and may view the online reports relating to its activity within the Matomy Media Group reporting system (the “Report”), which during the relevant month are only estimated non-final numbers that may be changed or adjusted by Matomy until 15 days after the end of the relevant month. At the end of the month the reports will be frozen and within 15 days will include the definitive numbers of earnings as maybe adjusted as aforesaid. Member agrees that Matomy stats will be final and binding in every case and serve as the sole basis for the calculation of Member’s payments as described in section 5 below.

  1. ADVERTISER FEES

5.1. Advertiser shall be responsible for prepayment in the amount as shall be determined by the Advertiser with a minimum deposit of $ 50.00. For the avoidance of doubts, any amount(s) paid by the Advertiser is non-refundable for any reason whatsoever.

5.2. At the sole discretion of Matomy, different payment terms may be granted to the Advertiser as follows: Advertiser shall be invoiced by Matomy on a monthly basis according to the Reports upon completion of the calendar month in which the Services were provided and shall pay such invoice net+30 days from the date of invoice. Unless otherwise specified in writing on the invoice, Member shall pay all applicable fees, taxes, commissions or the like. For the avoidance of doubt, all the Reports are final and binding. Any payment which is not rejected within 5 days from the date of invoice will be deemed to be approved by the Advertiser. Any rejection must be provided in writing and reasonably substantiated.

5.3. Member must have a $10.00 fund balance in Advertiser Account. In addition to any other rights, Matomy may immediately remove Ad Materials in the event of non-payment by Advertiser within such time period.

5.4. All payment shall be in U.S Dollars. It is hereby agreed that late payments are subject to 1.5% interest per month, compounded monthly. All sums payable by Advertiser to Matomy under this Agreement are exclusive of any sales tax, indirect or similar taxes chargeable on any supply to which those sums relate and Advertiser shall be responsible for such payments.

5.5. Unless otherwise specified, all billing calculations are based solely on the Report.

5.6. Matomy reserves the right to change payment dates and amounts, at any time, with or without prior notification to member, which may be posted on the Service website, in Member’s Service account, or emailed to Members.

 

  1. 6.    CLICK FRAUD

All ad campaigns are monitored for fraudulent and/or otherwise non-compliant activity by Matomy. Any revenue believed to be generated by fraudulent or non-compliant clicks will be refunded to the Advertiser in good faith according to section 5.2 above. Matomy reserves the right to reject any or all requests for investigation of assumed click fraud or other non-compliant clicks by any Member at its sole discretion.

 

  1. 7.    TERMINATION OF SERVICE

7.1. Termination by Matomy:

Matomy may terminate the Service with or without cause at any time, effective immediately and without prior notice. Matomy may terminate a Member via written or email notice as necessary at Matomy’s sole discretion. Matomy shall not be liable to Member or any third party for Termination of Service.

7.2. Termination by a Member: Advertiser may terminate this Agreement upon 24 hours prior notice written to Matomy via email.

Upon termination of the Service, by Matomy or by a Member, Member’s right to use the Service instantly ceases. Member shall have no right, and Matomy shall have no obligation thereafter, to forward any information associated with Member’s Account. Any amount(s) paid for the month in which Member cancel, and/or any fee(s) for any month expired before Member termination, is non-refundable.

 

7.3. TERMINATION FOR ILLEGAL OR OTHER ACTIVITY

Matomy may, but has no duty to, immediately terminate Member and remove it from the Service servers if, in its sole discretion, Matomy concludes that Member is engaged in illegal activities or the sale of illegal or harmful goods or services, or is engaged in activities or sales that may damage the rights of Matomy or which are not permitted under this Agreement or others. Any termination under this Section shall take effect immediately, and Member expressly agrees that it shall not have any opportunity to cure.

7.4. WAIVER: Member expressly waives any statutory or other legal protection in conflict with the provisions of this Section 7.

7.5. DELETION OF INFORMATION: Upon termination, Matomy reserves the right to delete from its servers any and all information contained in Member’s Account including, but not limited to, order processing information, mailing lists, and any data generated by the Service software.

7.6. SURVIVAL: The following Sections shall survive any termination of this Agreement: 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16.

 

  1. 8.    EXCLUSION OF WARRANTIES

8.1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MEMBER EXPRESSLY UNDERSTAND AND AGREES THAT MEMBER USE OF THE SERVICE IS AT MEMBER’S SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES.

8.2. IN PARTICULAR, MATOMY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO MEMBER THAT:

8.2.1.   MEMEBER USE OF THE SERVICE WILL MEET MEMBER’S REQUIREMENTS,

8.2.2.   MEMEBER USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,

8.2.3.   ANY INFORMATION OBTAINED BY MEMBER AS A RESULT OF MEMBER USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND

8.2.4.   THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO MEMEBER AS PART OF THE SERVICE WILL BE CORRECTED.

8.3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT MEMBER’S OWN DISCRETION AND RISK AND MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER AND/OR THIRD PARTY COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

8.4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MEMBER FROM MATOMY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

8.5. MATOMY FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  1. LIMITATION OF LIABILITY

9.1.  MEMEBER EXPRESSLY UNDERSTANDS AND AGREES THAT MATOMY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO MEMEBER AND/OR TO ANY THIRD PARTY FOR:

9.1.1.   ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY MEMEBER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;

9.1.2.   ANY LOSS OR DAMAGE ARRISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:

9.1.3.   ANY RELIANCE PLACED BY MEMEBER ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN MEMEBER AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS THROUGH THE SERVICE;

9.1.4.   ANY CHANGES WHICH MATOMY MAY MAKE TO THE SERVICE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICE (OR ANY FEATURES WITHIN THE SERVICE);

9.1.5.   THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH MEMBER’S USE OF THE SERVICE;

9.1.6.   MEMBER’S FAILURE TO PROVIDE MATOMY WITH ACCURATE ACCOUNT INFORMATION;

9.1.7.   MEMBER’S FAILURE TO KEEP HIS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;

9.2. THE LIMITATIONS ON MATOMY’S LIABILITY TO MEMEBER IN PARAGRAPH 8.1 ABOVE SHALL APPLY WHETHER OR NOT MATOMY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

9.3. MATOMY’S LIABILITY TO MEMBER OR ANY THIRD PARTY IN ANY AND ALL CIRCUMSTANCE SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MEMBER TO THE SERVICE OVER THE 3 MONTHS PERIOD PRIOR TO THE CLAIM. THIS LIMITATION OF LIABILITY IS APPLICABLE TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW.

9.4. INDEMNIFICATION          
Member hereby agrees to indemnify, defend and hold harmless Matomy and its officers, directors, agents, publishers and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (a) for libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the mobile application / website; (b) arising out of any breach by Member of any duty, representation or warranty under any this Agreement;

10. COPYRIGHT AND TRADEMARK POLICIES:

10.1.             Matomy and its licensors own and shall retain all right, title and interest in and to the Platform, the Matomy Mobile Advertising Network and the Data (as defined below), including all Intellectual Property rights (as defined in Annex A) embodied therein. Subject to the license grant to Matomy herein, Member and its licensors own and shall retain all right, title and interest in and to the Creative, including all Intellectual Property rights embodied therein.

10.2.             Matomy reserves the right to: (i) respond to notices of alleged copyright infringement that comply with applicable international intellectual property law and (ii) terminate the accounts of repeat infringers, including disclosure of relevant Member information when required and Member agrees and acknowledges that any such disclosure is hereby permitted and shall not be deemed to violate any other term in this Agreement.

11.
COLLECTION AND USE OF DATA

In connection with the operation of the Service, Matomy may collect and receive end-user device information, end-user’s session-based browsing behavior, number of impressions, aggregate performance statistics, http header information and any other data that Member elects to provide to Matomy (“Data”). Member agrees that Matomy may: (a) use such Data to provide the Service to Member; (b) use and store such Data for Matomy’s internal business purposes; (c) disclose such Data as may be required by law or legal process; and (d) use and disclose such Data when it is aggregated with similar information relating to other Matomy Members or end-users, and does not specifically identify the Member or end-user.

12. OTHER CONTENT:

12.1.             The mobile websites/applications may include hyperlinks to other mobile websites or content or resources. Matomy may have no control over any mobile websites or resources which are provided by companies or persons other than Matomy.

12.2.             Member acknowledges and agrees that Matomy is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such mobile websites/applications or resources.

12.3.             Without derogating from Sections 7-8 above, Member acknowledges and agrees that Matomy is not liable for any loss or damage which may be incurred by Member as a result of the availability of those external sites or resources, or as a result of any reliance placed by Member on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such mobile websites/applications or resources.

13. CHANGES TO THE TERMS:

13.1.             Matomy may make changes to the Service at any time. When these changes are made, Matomy will make a new copy of the Agreement available at http://www.Matomy.com and be made available to Member from within, or through, the Service.

13.2.             Member understands and agrees that if Member use the Service after the date on which the Agreement has changed, Matomy will treat Member’s use as acceptance of the updated Agreement.

14. CONFIDENTIALITY

Member or Matomy may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party (“Confidential Information”). The receiving party agrees to make commercially reasonable efforts, but in no case less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include: (i) information that is or becomes part of the public domain through no act or omission of the receiving party, or (ii) is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement, or (iv) is disclosed pursuant to the order or requirement of a court, stock exchange, administrative agency, or other governmental body. Member agrees that Matomy may provide Member’s basic details Account and Member’s email to the publisher or any third party.

15. NON- SOLICITATION

During the Term of this Agreement and for a period of one (1) years hereafter, Member shall not knowingly solicit, directly or through third party, any advertiser/publisher that is obtained through the Services provided by Matomy under this Agreement, and Member shall not encourage any such advertiser/publisher to transfer from the Services. Without prejudice to any other right of Matomy according to this Agreement and the applicable law, in the event Member directly solicit or cause to be transferred any advertiser/publisher, Member shall pay Matomy what Matomy would have otherwise earned if Member had not violated this provision.

16. GENERAL TERMS:

16.1.             Sometimes when Member use the Service, Member may (as a result of, or through Member use of the Service) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Member’s use of these other services, software or goods may be subject to separate terms between Member and the company or person concerned. If so, the Agreement does not affect Member’s legal relationship with these other companies or individuals.

16.2.             The Agreement constitutes the whole legal agreement between Member and Matomy and governs Member’s use of the Service (however excluding any services which Matomy may provide to Member under a separate written agreement), and completely replace any prior agreements between Member and Matomy in relation to the Service.

16.3.             Matomy shall be entitled to freely assign any of its rights and obligations in connection with this Agreement or any subsequent business activity to any of its subsidiaries and/or affiliated companies.

16.4.             Member agree that Matomy may provide Member with notices, including those regarding changes to the Agreement, by email, regular mail, or postings on the Service.

16.5.             Member agree that if Matomy does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Matomy has the benefit of under any applicable law), this will not be taken to be a formal waiver of Matomy rights and that those rights or remedies will still be available to Matomy.

16.6.             If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Terms. The remaining provisions of the Agreement will continue to be valid and enforceable.

16.7.             Member acknowledge and agree that each member of the group of companies of which Matomy is the parent shall be third party beneficiaries to the Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Agreement which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Agreement.

16.8.             Member and Matomy are independent contractors, and nothing in this Agreement will create any joint venture, agency, franchise, sales representative, or employment relationship between the parties. Member has no authority to make or accept any offers or representations on behalf of Matomy. Member will not make any statement, on its website or otherwise, that reasonably would contradict anything in this section. The relationship between the parties is non-exclusive and this Agreement shall not restrict either party form engaging in any promotion or advertisement relationship with any third party.

16.9.             This Agreement, and your relationship with Matomy under the Terms, shall be solely and finally settled as follows:

16.9.1.                US Residents: Disputes with US residents shall be governed by and be construed according to the laws of the State of California, without regard to the conflict of laws provisions thereto. Any dispute arising under or in relation to this Agreement shall be exclusively resolved in the competent court in in the county of Los-Angeles, California. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST LAWFUL EXTENT, ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS THEY CONTEMPLATE.

16.9.2.                EU Residents: This Agreement shall be exclusively governed by the laws of England and Wales, without reference to conflict of laws principles. Without derogating from the Matomy’s right to seek injunctive relief in any jurisdiction it may deem proper, both parties agree that all disputes between the parties in connection with or arising out of the existence, validity, construction, performance and termination of this Agreement (or any terms thereof), which the parties are unable to amicably resolve between themselves within 30 days, shall be referred to arbitration in London in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said rules. Said arbitration shall be conducted in English and the arbitrator shall be obligated to reason his/her decisions.

16.9.3.                All other Jurisdictions: Disputes with Customers which are not residents of the US or EU, shall be governed by and be construed according to the laws of the State of Israel, without regard to the conflict of laws provisions thereto. Any dispute arising under or in relation to this Agreement shall be exclusively resolved in the competent court of Tel-Aviv.           

17. CONTACT DETAILS

If you have any questions regarding the Agreement, please contact us:

Matomy Media Ltd.
6 Hanechoshet St.
Tel Aviv, 6971070
Israel

Advertisers and Agencies:

mobfox-support@mobfox.com

 


 

Annex A

Marketplace for Demand Advertisers Agreement

The following terms shall apply to you in connection with your activity as a DSP in addition to the Terms set forth above.

  1. 1.    DEFINITIONS.

1.1. “Ads” means advertisements and any material that promotes a brand or products or services, and shall include, without limitation, video ads, interstitial ads, ad banners, badges, buttons and text links, as sourced by Member for display on Inventory hereunder.

1.2. “Advertiser” means an advertiser, media buyer, ad-agency or other provider of Ads that is in the Member Network.

1.3. “Auction Clearing Price” is the second highest bid in the auction and the price at which the impression is sold to Member if Member wins the auction.

1.4.  “Member Platform” Member’s Demand Side Platform or Real Time Bidding Technology Partner, including all third party Advertisers on the platform.

1.5. “End User” means any web or mobile end user that views, is able to view, or interacts with an Ad in connection with the Matomy Services.

1.6. “Intellectual Property Rights” means copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.

1.7. “Inventory” means elements of a website or application that a Publisher designates for placement of Ads.

1.8. “Max Bid” is the maximum bid established by Member or its Advertiser.

1.9. “Matomy Marketplace” means the Matomy platform and service for automated, real-time bidding to match Ads with Inventory.

1.10.  “Matomy RTB API” means the Matomy version of OpenRTB protocol, licensed pursuant to Free BSD license.

1.11.   “Matomy Services” means collectively, the Matomy Marketplace and the Matomy UI, and all related user portals, technology and software, but specifically excluding the Matomy RTB API.

1.12.  “Matomy UI” means the Member online interface through which Member can login and manage its Ad campaigns, as made available by Matomy.

1.13.   “Publisher” means a third party seller of Inventory (typically a publisher) that owns or controls the sites or applications that host Inventory.

1.14.   “Service Data” means any data that either party collects during delivery of Ads or performance of its obligations under this Agreement, including the End User device information, End User’s session-based browsing behavior, number of impressions, http header information, and any other data that Member elects to provide to Matomy.

  1. 2.    LICENSES.

2.1  License to Matomy Services. Subject to the terms and conditions of the Agreement, Member shall have the right during the Term to access and use the Matomy Marketplace solely for purposes of: (a) bidding for Inventory on the Matomy Marketplace, and (b) receiving reports of advertising requests, impressions and other data related to the delivery of Ads through the Matomy Marketplace.

2.2  License to Ads. During the Term, Member grants Matomy a license under all of Member’s applicable rights to serve, route and place Ads onto Inventory.

  1. 3.    IMPLEMENTATION.

3.1  Disclosures. Member understands that (a) the highest bid may not always win an auction based on the functionality of the Matomy Services (e.g., seller of Inventory specifies requirements on bidding terms, or specifies exclusions regarding who may buy its Inventory), (b) the Matomy Marketplace allows for transactions in real time, and bids and offers may compete simultaneously against multiple other bids and offers, and (c) Member will have no recourse for any transaction that does not occur and Matomy makes no guarantee regarding the level of impressions of Ads, the timing of delivery of such impressions or the amount of any payment to be made or due hereunder.

3.2  Service Modification. Matomy reserves the right to modify or suspend the Matomy Services in whole or in part at any time if Matomy believes such modification is reasonably necessary in order to: (a) comply with applicable law or industry regulation, including the requirements of any self regulatory program or framework; (b) to avoid or limit liability; (c) prevent errors or any other harm with respect to the Matomy Services or other properties, services, web sites and applications serviced by the Matomy Services; or (d) respond to Member’s breach of this Agreement (e.g., failure to pay fees or breach or abuse of the Matomy Services or End User). Matomy may notify Member following any such modification or suspension.

3.3  Ad Removal. Member agrees that Matomy has no obligation to monitor or edit the content of any Ads. Matomy may remove or block any Ads if Matomy reasonably determines that such action is appropriate to prevent errors or any other harm with respect to the Matomy Service, or avoid or limit Matomy’s liability.

3.4  Tracking. Matomy will determine how to measure the number of impressions, inquiries, conversions, clicks, offers, installations, or other actions taken by third parties in connection with Ads, and all payment will be based on such measurements.

3.5  Matomy Policies. Member will comply, and contractually require its third party Advertisers within the Member Network to comply, with the Matomy policies. Upon request, Member will reasonably assist Matomy in enforcing the Matomy policies vis-à-vis such third party Advertisers in the Member Network.

3.6  Non-Solicit. Member may not contact the sellers of Inventory on the Matomy Marketplace for the purpose of using Member’s knowledge gained by participating in the Matomy Marketplace to circumvent the Matomy Marketplace and reduce Member’s or its Advertisers cost of buying media from Matomy Marketplace sellers.

3.6.1      By way of example, it would not be deemed a violation of this Section if Member approached a seller for the purpose of buying media that was not available on the Matomy Marketplace, such as a homepage guarantee buyout, even if Member, or the Member on behalf of an Advertiser, did not have a preexisting relationship with such seller.

3.6.2      By way of example, it would be deemed a violation of this Section if Member elects to buy media directly from a seller after Member becomes aware through the Matomy Marketplace that such media is available from the seller, and as a direct result, Member (or its Advertisers) are able to purchase the same media at a lower cost by approaching the seller for a direct economic relationship.

  1. 4.    OBLIGATIONS.

4.1  Member Responsibility. Member shall be solely responsible for all aspects of dealing with its Advertisers (e.g., selling, collection of payment, client service), content and placement of Ads, and handling all inquiries of any type or nature. Member will be responsible for any acts or omissions of an Advertiser that is in breach of this Agreement or violation of any applicable laws.

4.2  Restrictions. Member shall have no rights or licenses with respect to the Matomy Services except as expressly provided in this Agreement and Matomy reserves all rights not explicitly granted herein. Member may not (a) copy, distribute, rent, lease, lend, sublicense, transfer or make the Matomy Services available to any third party outside of the Member Network, (b) decompile, reverse engineer, or disassemble the Matomy Services, (c) create derivative works based on the Matomy Services; or (d) modify, remove, or obscure any proprietary notices or legends that appear on the Matomy Services or during the use and operation thereof.

4.3  Prohibited Actions. Member will not, and will not allow any third party to: (a) generate queries, or impressions of or clicks on Ads through any automated, deceptive, fraudulent or other invalid means (including, click spam, robots, macro programs, and Internet agents); (b) encourage or require End Users to click on Ads through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; or (c) create or attempt to create a substitute or similar service or product through use of or access to any of the Matomy Services or proprietary information related thereto.

4.4  Matomy UI. Member must register for an account and can manage its campaigns and view all available performance metrics via the Matomy UI, provided that Member acknowledges that such metrics are provided by a third party and may change at any time. Member is solely responsible for the security of its account and shall be responsible for any activities of any person authorized by Member.

  1. 5.    DATA

5.1  Matomy; Service Data. In connection with the operation of the Matomy Services, Matomy may collect and receive Service Data. Member agrees that Matomy may, so long as such use and storage is in compliance with all applicable laws, rules, and regulations: (a) use such information to provide the Matomy Services to Member and its Advertisers; (b) use and store such information for Matomy’s internal business purposes; (c) disclose such information as may be required by law or legal process; and (d) use and disclose such information when it is aggregated with similar information relating to other Matomy Members or End Users, and does not specifically identify the Member or End User.

5.2  Member; Service Data. Member and its Advertisers may use Service Data to deliver the applicable Ad so long as such use is (a) in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Service Data (including but not limited to applicable restrictions on retargeting, merging with other data, and use of PII or sensitive data); and (b) and that it provides any notices and options, and obtains any consents or authorizations End Users that may be required in connection therewith.

5.3  User Volunteered Data. If Member or Advertiser collects any User Volunteered Data via an Ad, Member or Advertiser must expressly disclose to such individual End User that such collection is solely on behalf of Member or its Advertiser (versus Matomy). As between Matomy and Member, User Volunteered Data will be solely collected and handled by Member or its Advertiser, and shall be subject to Advertiser’s posted privacy policy. “User Volunteered Data” means any personally identifiable or sensitive information of End Users collected by Member or its Advertiser directly via any Ad.

  1. 6.    Effect of Termination.

Sections 4, 5, 6, 7 herein, shall survive expiration or termination of the Agreement. Upon termination or expiration of the Agreement for any reason, all licenses granted herein shall terminate and Member shall discontinue all use of the Matomy Services.

  1. 7.    OWNERSHIP. As between the parties, Matomy retains all right, title and interest in and to the Matomy Services and any materials created, developed or provided by Matomy in connection with the Agreement, including all Intellectual Property Rights related to each of the foregoing. As between the parties, Member retains all right, title and interest in and to the Members Services and any materials created, developed or provided by Member in connection with this Agreement, including all intellectual property rights related to each of the foregoing. If Member provides any feedback or suggestions to Matomy, Member agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Matomy.


 

Annex B

Creative Guidelines

Prohibited Ads and Content:

  1. Misleading or deceptive ads, services or products, including but not limited to: ads that impersonate a system message, error warning, fake buttons, impersonate another app/software, missed message/call or chat window, state or imply that the user is at imminent risk of getting a virus, or that they already have one, violate copyright or trademarked content, make untrue statements;
  2. Sexual content, pornographic, nudity (full, partial or implied);
  3. Alcohol, tobacco, drugs;
  4. Firearms;
  5. Violence, offensive or hateful speech and visuals;
  6. False representation of brands, trademarks or celebrities without expressed; endorsement of the advertiser’s product
  7. Contain, install, link to, or prompt the download of any malware;
  8. Initiate a download of any type of file without a landing page;
  9. Auto redirect the user to a landing page without requiring a click through or other interaction;
  10. Be unclear on what the offer is or banner does not match the landing page;
  11. Landing page does not work properly;
  12. Have excessive animations, flashing or shaking;
  13. Gambling (Permissible in the following countries only: UK ,CA ,ES ,AU ,DE ,FR ,IT, JP).

Creative Guidelines Penalties:

Without derogating from any other right of Matomy pursuant to the Agreement or the applicable law, Advertisers will have their accounts suspended or terminated if the following violations occur:

  1. Account suspensions:
  2. Repeated uploads of creative and/or landing pages that have previously been rejected by our compliance team. If a campaign, creative or landing page has been rejected, do not resubmit it.
  3. Immediate Account Termination:
  4. “Bait and swapping” landing pages: The landing page design that was originally used for campaign approval must never change.
  5. Malware / Spyware / Virus: The creative or landing page initiates directly or indirectly the installation of any malware, spyware, Trojan, or other virus to the user’s device.
  6. Apply penalties or claim liquidated damages.

Matomy Media Ltd. – Publisher Terms of Service

1. AGREEMENT

The Matomy Mobile Advertising Network provided by Matomy Media Ltd. (“Service”), owned and operated by Matomy Media Ltd. and its affiliated companies under the name Mobfox (“Matomy”), is provided to you (“Member”, “Publisher”) under the Terms and Conditions (“Terms”) of this Publisher Service Agreement (“Agreement”), and any amendments thereto and any operating rules or policies. Matomy reserves the right, in its sole discretion, to change, modify, add or remove all or part of the Agreement at any time. If this Terms and/or any modification to this agreement is unacceptable to Member, Member’s only recourse will be to terminate this agreement as set forth herein. Member’s continued participation with the Service following Matomy’s posting of a new agreement on Matomy’s site will constitute a binding acceptance of the change.

1.1 By accepting the Terms of the Agreement, the Member:

(a) Represents and warrants that Member is of at least 18 years of age;

(b) Agrees to provide accurate, current and complete information about Member as prompted by the Account Registration Form;

(c) Agrees to maintain and update this information to keep it accurate, current and complete;

If any information provided by Member is inaccurate, not current or incomplete, Matomy has the right to terminate Member’s account.

1.2 BY COMPLETING THE ACCOUNT REGISTRATION PROCESS, AND CLICKING THE “REGISTER” BUTTON, MEMBER AGREES TO BE BOUND BY THIS AGREEMENT AND ACKNOWLEDGES THE ESTABLISHMENT OF AN ACCOUNT ON BEHALF OF SUCH MEMBER (THE “ACCOUNT”).

2. DESCRIPTION OF SERVICE

Matomy shall provide you with access to the tracking and reporting tools. Tracking details regarding visitor transactions may not be available on a real-time basis for all Advertisers and there may be reporting delays regarding transactions for certain Advertisers..

2.1 Editorial Review – Without derogating from any other provision in this Agreement, Matomy reserves the right, without any obligation herein, to review each mobile application or website individually, and has the right, to edit, refuse, reject or remove the Publisher’s mobile application / website from the Services at any time and for any reason.

2.2 Technical Support - Members may receive technical help and resolve billing inquiries by contacting Matomy Support via e mail (as written below). Should Member become dissatisfied with the Service in any way, Member’s shall immediately contact Matomy support by emailing directly to the relevant email address written below.

2.3 USE OF THE SERVICE SUBMISSIONS
By submitting material or web page listings to the Service (including information regarding the listing) you are irrevocably granting Matomy, its licensees, and any entities in the Service, the right to use all parts of the material without limitation including, but not limited to, modifying it or using it commercially and authorizing others to do so.

3. MEMBER REPRESENTATIONS

Member represents and warrants that:

(a) Member is the legal owner of the URL or any other digital media source (“Digital Media”) specified in his Advertiser Account, an employee of the legal owner of the Digital Media, or has obtained express written permission from the legal owner of the Digital Media in connection with the use of the Service with the aforementioned domain. Without derogating from any other provision in this Agreement, Member expressly agrees to indemnify Matomy from any claims, losses, damages, including by any third party, arising from or in connection with the use of the Advertiser Service with the specified Digital Media.

(b) Member is the owner or is licensed to use the entire contents and subject matter contained in the mobile application / website and/or any creative such as image, text, programming code, graphic content or any combination thereof (“Creative”);
(c) the mobile application / website and/or any Creative is free of any virus or other any other device that could impair or injure any person, or entity, computer equipment or software;
(d) the mobile application / website and/or any Creative does not violate any law or regulation, including those governing false or deceptive advertising, sweepstakes, gambling, or trade disparagement;
(e) the mobile application / website and/or any Creative does not contain any misrepresentations or content that is defamatory or violates any rights of privacy or publicity;
(f) the mobile application / website and/or any Creative does not contain any child pornography or link to such content;
(g) the mobile application / website does not contain any linking to software piracy;
(h) the mobile application / website and/or any Creative does not contain or link to any form of illegal activity (i.e., how to build a bomb, hacking, etc.);
(i) the mobile application / website and/or any Creative does not contain any gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm;
(j) the mobile application / website and/or any Creative does not contain any content promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.);
(k) the mobile application / website and/or any Creative does not participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam);
(l) Member will comply with all laws and regulations that may apply to Internet advertising, including, but not limited to the Children’s Online Privacy Protection Act, the Can-Spam Act, the Federal Trade Commission Act and the Digital Millennium Copyright Act;
(m) the mobile application / website does not and will not infringe any copyright, trademark, patent or other proprietary right;

(o) Member shall comply with the privacy of the online community which is presented in http://www.matomy.com/assets/global-privacy-policy

4. MATOMY REPORT

During the Services, Member will be granted access and may view the online reports relating to its activity within the Matomy Media Group reporting system (the “Report”), which during the relevant month are only estimated non-final numbers that may be changed or adjusted by Matomy until 15 days after the end of the relevant month. At the end of the month the reports will be frozen and within 15 days will include the definitive numbers of earnings as maybe adjusted as aforesaid. Member agrees that Matomy stats will be final and binding in every case and serve as the sole basis for the calculation of Member’s payments.

5. PUBLISHER PAYMENT

5.1 Matomy shall credit the Publisher’s account with a payout for each action made by a visitor through the Publisher’s mobile application / website (“Transaction”) on the basis of the agreed payout rate under the applicable ad program. Matomy shall pay to the Publisher by Pay Pal or wire any amounts due to Publisher, approximately 30 days after the end of the month, regardless of whether payment has been collected from the Advertiser.  Publisher shall pay all applicable fees, taxes, commissions or the like in connection with such payment.

Matomy may, at Matomy’s sole discretion, apply an estimated amount of payouts if: (i) the Publisher is referring visitors to Advertiser as verified by clicks through links to Advertiser with Matomy’s Report, (ii) in the case of an error in Advertiser’s transmission of the Report data to Matomy, and (iii) in an instance in which Matomy is able to utilize a historical analysis of the Publisher promotion of Advertiser in order to determine an equitable amount of estimated payouts.

Processing fees will be deducted from Publisher commission balance. If Publisher does not earn the minimum amount in a month, the balance will be carried forward until such time as the minimum amount is earned or until this Agreement is terminated. The Publisher acknowledges that the minimum amount may vary based upon the applicable currency being used and that the binding minimum amount shall be the amount listed in Matomy’s system as may be updated from time to time. Publishers are responsible for ensuring that their bank details, address and Pay Pal e-mail address are correct in their Matomy Account details in order to receive payment.

Notwithstanding the aforesaid, Matomy reserves the right to reclassify any Transactions and reduce any payments due to Publisher because of any claims, demands, offsets or the like made by Advertisers for invalid events, technical errors, tracking discrepancies or similar events that produce invalid results, even if the applicable Transaction was originally approved. Matomy shall compile, calculate and electronically deliver to Publisher the relevant data required to determine Publisher’s billing and compensation. The Publisher acknowledges that payments are based on the Report and hereby waives any claim and/or demand towards Matomy as a result of discrepancy between the Report and any other similar tracking system.

In Addition and without derogating from any other right under this Agreement, Advertiser or Matomy may apply a debit to the Publisher’s account in circumstances of: (i) duplicate entry or other clear error; (ii) non-bona fide transactions; (iii) non-receipt of payment from, or refund of payment to the visitor by the Advertiser; or (iv) Publisher failure to comply with Advertiser’s program terms or other agreement with Advertiser (“Chargeback”). Chargebacks may be applied to the Publisher’s Account at any time, including previous payment cycles within 3 (three) months from such Chargeback event.

5.2 Matomy reserves the right to change payment dates and amounts, at any time, with or without prior notification to member, which may be posted on the Service website, in Member’s Service account, or emailed to Members.

6. CLICK FRAUD

All ad campaigns are monitored for fraudulent and/or otherwise non-compliant activity by Matomy. Publisher accounts believed to be responsible for fraudulent or non-compliant clicks will be automatically restricted from use of their Publisher area, and investigated for click fraud. Any revenue believed to be generated by fraudulent or non-compliant clicks will be refunded to the Advertiser in good faith. CLICKING ON YOUR OWN AD SPACE COUNTS AS CLICK FRAUD AND WILL RESULT IN AUTOMATIC TERMINATION. Matomy reserves the right to reject any or all requests for investigation of assumed click fraud or other non-compliant clicks by any Member at its sole discretion.

7. TERMINATION OF SERVICE

7.1 Termination by Matomy:

Matomy may terminate the Service with or without cause at any time, effective immediately and without prior notice. Matomy may terminate a Member via written or email notice as necessary at Matomy’s sole discretion. Matomy shall not be liable to Member or any third party for Termination of Service.

7.2 Termination by a Member:

Publisher may terminate this Agreement upon 48 hours prior written notice to Matomy via email.

Upon termination of the Service, by Matomy or by a Member, Member’s right to use the Service instantly ceases. Member shall have no right, and Matomy shall have no obligation thereafter, to forward any information associated with Member’s Account. Any amount(s) paid for the month in which Member cancel, and/or any fee(s) for any month expired before Member termination, is non-refundable. 

7.3 TERMINATION FOR ILLEGAL OR OTHER ACTIVITY

Matomy may, but has no duty to, immediately terminate Member and remove it from the Service servers if, in its sole discretion, Matomy concludes that Member is engaged in illegal activities or the sale of illegal or harmful goods or services, or is engaged in activities or sales that may damage the rights of Matomy or which are not permitted under this Agreement or others. Any termination under this Section shall take effect immediately, and Member expressly agrees that it shall not have any opportunity to cure.

7.4 WAIVER: Member expressly waives any statutory or other legal protection in conflict with the provisions of this Section 6.

7.5 DELETION OF INFORMATION: Upon termination, Matomy reserves the right to delete from its servers any and all information contained in Member’s Account including, but not limited to, order processing information, mailing lists, and any data generated by the Service software.

7.6 SURVIVAL: The following Sections shall survive any termination of this Agreement: 7, 8, 11, 13 and 15.

8. EXCLUSION OF WARRANTIES

8.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MEMBER EXPRESSLY UNDERSTAND AND AGREES THAT MEMBER USE OF THE SERVICE IS AT MEMBER’S SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES.

8.2 IN PARTICULAR, MATOMY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO MEMBER THAT:

(A) MEMEBER USE OF THE SERVICE WILL MEET MEMBER’S REQUIREMENTS,

(B) MEMEBER USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,

(C) ANY INFORMATION OBTAINED BY MEMBER AS A RESULT OF MEMBER USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND

(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO MEMEBER AS PART OF THE SERVICE WILL BE CORRECTED.

8.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT MEMBER’S OWN DISCRETION AND RISK AND MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER AND/OR THIRD PARTY COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

8.4
 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MEMBER FROM MATOMY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

8.5 MATOMY FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

9. LIMITATION OF LIABILITY

9.1 MEMEBER EXPRESSLY UNDERSTANDS AND AGREES THAT MATOMY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO MEMEBER AND/OR TO ANY THIRD PARTY FOR:

(1) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY MEMEBER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;

(2) ANY LOSS OR DAMAGE ARRISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:

(A) ANY RELIANCE PLACED BY MEMEBER ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN MEMEBER AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS THROUGH THE SERVICE;

(B) ANY CHANGES WHICH MATOMY MAY MAKE TO THE SERVICE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICE (OR ANY FEATURES WITHIN THE SERVICE);

(C) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH MEMBER’S USE OF THE SERVICE;

(D) MEMBER’S FAILURE TO PROVIDE MATOMY WITH ACCURATE ACCOUNT INFORMATION;

(E) MEMBER’S FAILURE TO KEEP HIS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;

9.2 THE LIMITATIONS ON MATOMY’S LIABILITY TO MEMEBER IN PARAGRAPH 8.1 ABOVE SHALL APPLY WHETHER OR NOT MATOMY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

9.3 MATOMY’S LIABILITY TO MEMBER OR ANY THIRD PARTY IN ANY AND ALL CIRCUMSTANCE SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MEMBER TO THE SERVICE OVER THE 3 MONTHS PERIOD PRIOR TO THE CLAIM. THIS LIMITATION OF LIABILITY IS APPLICABLE TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW.

9.4 INDEMNIFICATION        
Member hereby agrees to indemnify, defend and hold harmless Matomy and its officers, directors, agents, publishers and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (a) for libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the mobile application / website; (b) arising out of any breach by Member of any duty, representation or warranty under any this Agreement; or (c) relating to a contaminated file, worm, virus, spyware, malware, adware, or trojan-horse or the like originating from Member’s mobile application / website.

10. COPYRIGHT AND TRADEMARK POLICIES:

Matomy reserves the right to: (i) respond to notices of alleged copyright infringement that comply with applicable international intellectual property law and (ii) terminate the accounts of repeat infringers, including disclosure of relevant Member information when required and Member agrees and acknowledges that any such disclosure is hereby permitted and shall not be deemed to violate any other term in this Agreement.

11. ADVERTISEMENTS:

11.1 Some of the mobile websites/applications are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the mobile websites/applications, queries made through the mobile websites/applications or other information.

11.2 The manner, mode and extent of advertising by the Service on the mobile websites/applications are subject to change without specific notice to Member.

12. OTHER CONTENT:

12.1 The mobile websites may include hyperlinks to other mobile websites or content or resources. Matomy may have no control over any mobile websites or resources which are provided by companies or persons other than Matomy.

12.2 Member acknowledges and agrees that Matomy is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such mobile websites/applications or resources.

12.3 Without derogating from Sections 7-8 above, Member acknowledges and agrees that Matomy is not liable for any loss or damage which may be incurred by Member as a result of the availability of those external sites or resources, or as a result of any reliance placed by Member on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such mobile websites/applications or resources.

13. CHANGES TO THE TERMS:

13.1 Matomy may make changes to the Service at any time. When these changes are made, Matomy will make a new copy of the Agreement available at http://www.Matomy.com and be made available to Member from within, or through, the Service.

13.2 Member understands and agrees that if Member use the Service after the date on which the Agreement has changed, Matomy will treat Member’s use as acceptance of the updated Agreement.

14. CONFIDENTIALITY

Member or Matomy may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party (“Confidential Information”). The receiving party agrees to make commercially reasonable efforts, but in no case less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include: (i) information that is or becomes part of the public domain through no act or omission of the receiving party, or (ii) is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement, or (iv) is disclosed pursuant to the order or requirement of a court, stock exchange, administrative agency, or other governmental body.

Member agrees that Matomy may provide Member’s basic details Account and Member’s email to the publisher/advertiser or any third party.

15. NON- SOLICITATION

During the Term of this Agreement and for a period of one (1) years hereafter, Member shall not knowingly solicit, directly or through third party, any advertiser/publisher that is obtained through the Services provided by Matomy under this Agreement, and Member shall not encourage any such advertiser/publisher to transfer from the Services. Without prejudice to any other right of Matomy according to this Agreement and the applicable law, in the event Member directly solicit or cause to be transferred any advertiser/publisher, Member shall pay Matomy what Matomy would have otherwise earned if Member had not violated this provision.

16. GENERAL TERMS:

16.1 Sometimes when Member use the Service, Member may (as a result of, or through Member use of the Service) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Member’s use of these other services, software or goods may be subject to separate terms between Member and the company or person concerned. If so, the Agreement does not affect Member’s legal relationship with these other companies or individuals.

16.2 The Agreement constitutes the whole legal agreement between Member and Matomy and governs Member’s use of the Service (however excluding any services which Matomy may provide to Member under a separate written agreement), and completely replace any prior agreements between Member and Matomy in relation to the Service.

16.3 Matomy shall be entitled to freely assign any of its rights and obligations in connection with this Agreement or any subsequent business activity to any of its subsidiaries and/or affiliated companies.

16.4 Member agree that Matomy may provide Member with notices, including those regarding changes to the Agreement, by email, regular mail, or postings on the Service.

16.5 Member agree that if Matomy does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Matomy has the benefit of under any applicable law), this will not be taken to be a formal waiver of Matomy rights and that those rights or remedies will still be available to Matomy.

16.6 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Terms. The remaining provisions of the Agreement will continue to be valid and enforceable.

16.7 Member acknowledge and agree that each member of the group of companies of which Matomy is the parent shall be third party beneficiaries to the Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Agreement which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Agreement.

16.8 Member and Matomy are independent contractors, and nothing in this Agreement will create any joint venture, agency, franchise, sales representative, or employment relationship between the parties. Member has no authority to make or accept any offers or representations on behalf of Matomy. Member will not make any statement, on its website or otherwise, that reasonably would contradict anything in this section.

16.9 This Agreement, and your relationship with Matomy under the Terms, shall be solely and finally settled as follows:

(A) US Residents: Disputes with US residents shall be governed by and be construed according to the laws of the State of California, without regard to the conflict of laws provisions thereto. Any dispute arising under or in relation to this Agreement shall be exclusively resolved in the competent court in the county of Los-Angeles, California. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST LAWFUL EXTENT, ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS THEY CONTEMPLATE.

(B) EU Residents: This Agreement shall be exclusively governed by the laws of England and Wales, without reference to conflict of laws principles. Without derogating from the Matomy’s right to seek injunctive relief in any jurisdiction it may deem proper, both parties agree that all disputes between the parties in connection with or arising out of the existence, validity, construction, performance and termination of this Agreement (or any terms thereof), which the parties are unable to amicably resolve between themselves within 30 days, shall be referred to arbitration in London in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said rules. Said arbitration shall be conducted in English and the arbitrator shall be obligated to reason his/her decisions.

(C) All other Jurisdictions: Disputes with Customers which are not residents of the US or EU, shall be governed by and be construed according to the laws of the State of Israel, without regard to the conflict of laws provisions thereto. Any dispute arising under or in relation to this Agreement shall be exclusively resolved in the competent court of Tel-Aviv.

17. CONTACT DETAILS

If you have any questions regarding the Agreement, please contact us:

Matomy Media Ltd.
6 Hanechoshet St.
Tel Aviv, 6971070
Israel

publisher-sales@mobfox.com

Member confirms and agrees that Matomy and its subsidiaries may use the information Member provides that it collects for any legal purpose, including but not limited to, advertising, promotion and other sales and marketing purposes (“Promotional Communications”). Matomy and its subsidiaries may also share certain information with third-party advertising partners in accordance with its privacy policy available at the following URL: http://www.matomy.com/global-privacy-policy/ and incorporated by reference hereto forming an integral part hereof. Member may opt-out from receiving Promotional Communications at any time, by following the instructions at the end of the applicable e-mail message or e-mail us at:privacy@matomy.com. Member agrees and undertakes to fill and complete any consents which may require to give effect to Member’s consent as set forth above.

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