Matomy – Terms of Service

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 and the Matomy Guidelines for Publishers (collectively: the “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”).

  1. DESCRIPTION OF SERVICE

The Service allows Publisher: (i) to offer and sell elements of a mobile site or application that Publisher designates for placement of ads to any advertiser, demand side platform, advertising network or other participant with access to the Service (the “Advertiser(s)”); and (ii) access to data analytics, data enrichment and data processing and as a result access to targeted and unique digital ad inventory, subject to the terms and conditions set forth herein.

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 will 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.

  1. 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) Member will fully comply with the Mobfox Publisher Guidelines [See Schedule A].

(d) Member will include the Mobfox SDK Minimum Privacy Terms (“Minimum Privacy Terms”), or substantially similar terms, as part of its end-user privacy policy. The Minimum Privacy Terms are attached to the Mobfox Publisher Guidelines [See Schedule B].

  1. PRIVACY

Matomy collects, stores and uses personal details of Member’s authorized users and contact persons in accordance with Matomy’s privacy notice that is located at [https://www.mobfox.com/privacy-policy/]. To the extent that any end-user’s Data includes personal data of individuals who are in the European Union, then Matomy’s Personal Data Processing Addendum (DPA), which is attached hereto as Annex A, and serves as an integral part thereof, applies and the parties agree to comply with its terms.

  1. 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.

  1. PUBLISHER PAYMENT

6.1 Matomy will 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 will 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 will pay all applicable fees, taxes, commissions or the like in connection with such payment.

Matomy may, at Matomy’s sole discretion, apply an estimated number 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 number 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 will 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 will 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.

6.2 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.

  1. 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.

  1. TERMINATION OF SERVICE

8.1 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 will not be liable to Member or any third party for Termination of Service.

8.2 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 will have no right, and Matomy will 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.

8.3 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 will take effect immediately, and Member expressly agrees that it will not have any opportunity to cure.

8.4 WAIVER: Member expressly waives any statutory or other legal protection in conflict with the provisions of this section.

8.5 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.

8.6 SURVIVAL: The following sections will survive any termination of this Agreement: 8, 9, 12, 14 and 16.

  1. EXCLUSION OF WARRANTIES

9.1 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.

9.2 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.

9.3 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.

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

9.5 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

10.1 MEMEBER EXPRESSLY UNDERSTANDS AND AGREES THAT MATOMY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS WILL 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 WILL 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;

10.2 THE LIMITATIONS ON MATOMY’S LIABILITY TO MEMEBER IN PARAGRAPH 9.1 ABOVE WILL APPLY WHETHER OR NOT MATOMY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

10.3 MATOMY’S LIABILITY TO MEMBER OR ANY THIRD PARTY IN ANY AND ALL CIRCUMSTANCE WILL 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.

10.4 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.

  1. 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 will not be deemed to violate any other term in this Agreement.

  1. ADVERTISEMENTS

12.1 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.

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

  1. OTHER CONTENT

13.1 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.

13.2 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.

13.3 Without derogating from sections 8-9 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.

  1. CHANGES TO THE TERMS

14.1 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.

14.2 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.

  1. 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 will 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.

  1. NON-SOLICITATION

During the Term of this Agreement and for a period of one (1) years hereafter, Member will 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 will 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 will pay Matomy what Matomy would have otherwise earned if Member had not violated this provision.

  1. GENERAL TERMS

17.1 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.

17.2 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.

17.3 Matomy will 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.

17.4 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.

17.5 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.

17.6 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.

17.7 Member acknowledge and agree that each member of the group of companies of which Matomy is the parent will be third party beneficiaries to the Agreement and that such other companies will 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 will be third party beneficiaries to the Agreement.

17.8 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.

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

(A) US Residents: Disputes with US residents will 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 will 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 will 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, will 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 will be conducted in English and the arbitrator will be obligated to reason his/her decisions.

(C) All other Jurisdictions: Disputes with Customers which are not residents of the US or EU, will 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 will be exclusively resolved in the competent court of Tel-Aviv.

  1. CONTACT DETAILS

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

Matomy Media Ltd.
6 Hanechoshet St.
Tel Aviv, 6971070
Israel
[email protected]

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: [email protected]

Member agrees and undertakes to fill and complete any consents which may require giving effect to Member’s consent as set forth above.

 

Schedule A

Mobfox Publishers Guidelines

Thank you for joining the Mobfox Mobile Monetization and Mediation Platform
(“Mobfox“). We, Matomy Group (“Matomy”),
own and operate Mobfox. Matomy is committed to a lawful and ethical
service, pursuant to sound industry standards and practices.

To ensure the quality of our services, we have created the following
Publisher Guidelines. Compliance with our guidelines will demonstrate your
commitment to provide services while maintaining the highest standards of
professionalism, integrity and fairness.

You hereby commit to fully comply with the following guidelines.

In these guidelines –

You” includes your employees, contractors, partners,
affiliates, agents and any other person who acts on your behalf.

Laws” include all applicable laws, rules, regulations,
ordinances, judgments, decrees, orders or other governmental mandatory
requirements.

  1. General

1.1. You represent that you are the legal owner or in control of the
application, software, web-based service and any related offerings,
including any advertising, sponsored or promoted content, and other
third-party originated content, which is embedded, displayed, performed or
otherwise made available on or through your application, software, or
web-based service (together: the “Offering“).

  1. Lawfulness

2.1. You may not operate your Offering in a manner that constitutes or
encourages conduct that would constitute a criminal offense, give rise to
civil liability or otherwise violate applicable Laws, including laws and
regulations governing privacy, mass email, spam, export control, consumer
protection, unfair competition and false advertising.

2.2. You may not engage in activities which constitute, or are likely to
constitute unfair or deceptive trade practices.

2.3. Your Offering will not include, promote, or distribute prohibited
material, including without limitation: (i) pornography, or sexually
explicit content; (ii) hate speech or discriminatory content; (iii) content
promoting criminal activities; (iv) Racial, ethnic, political,
hate-mongering or otherwise objectionable content; (v) spyware, malware,
viruses, worms, Trojan horses, or any other computer code, files or
programs designed to interrupt, hijack, destroy or limit the functionality
of any computer software, hardware, network or telecommunications
equipment; (vi) content that infringes or violates the rights of others,
including copyright, trademark, trade secret, patent, privacy and publicity
rights; (vii) defamatory, libelous, obscene, offensive or harmful content,
(viii) materials targeted at or designed to appeal to children under the
age of 13, or to any other age under the applicable Laws; (ix) the unlawful
sale or advertisement of Alcohol, Tobacco, Prescription Drugs and Weapons;
(x) unlawful gaming, gambling, draws and betting, (xi) any other content
that violates applicable Laws.

2.4. Your Offering will not induce end users to install a software code,
application or component by intentionally misrepresenting that it is
necessary to secure the end user’s device, data, or other software or
applications, or that it is necessary for the functionality of the device
or any feature or software included therein.

  1. Platforms and Service Providers

3.1. You will fully comply with any terms, rules, guidelines and
instructions, by IOS, Android and any other applicable mobile platform or
operator.

3.2. You will abide by your Offering Terms and Privacy Policy, as these
terms are defined hereunder. You will also abide by the applicable terms
and policies of your service providers.

3.3. Without limiting the aforesaid, you may not operate your Offering in a
manner that will be deemed, or encourages activity that will be deemed as
fraudulent, misleading, threatening, harassing, anti-competitive,
misleading, libelous, defamatory, obscene, pornographic, profane or
otherwise objectionable.

3.4. You will not provide end users and any other third party inaccurate or
false statements about the source, ownership, purpose, functionality or
features of the Offering and any third-party content included therein.

  1. Transparency. Terms of Service

4.1. You will engage your end users with full transparency and disclose to
them: (i) Your full name and contact details, and of any other person or
entity that provides the Offering; (ii) the terms and conditions, or
license agreement (“Offering Terms“) that govern the end
users’ use of the Offering; (iii) all details about the effect of
installing the Offering on the end user’s device, and any changes in the
settings of the device as a result thereof.

4.2. You will make the Offering Terms easily accessible to end users, prior
to the installation process of the Offering, in the course of the
installation, and through the Offering.

4.3. You will clearly and conspicuously disclose to end users’ – and where
required under the applicable Laws– receive the end users’ appropriate
consent and permission, to the Offering’s access to and use of any features
of the end users’ devices, including, without limitation, (i) any access to
the device features, such as the camera or speaker; (ii) any changes in the
settings, preferences, functionality or display of the device’s operating
system, browser and other applications; (iii) Any code installations,
disablement, interference, impairment or uninstallation. Notwithstanding,
you may make changes to the device settings if: (i) the end users
reasonably expect these changes in connection with the installation and use
of the Offering; or, (ii) the end user provided the appropriate consent
under the applicable Laws to the changes; or (iii) the changes are
technical and minor by their nature and do not interfere, violate or
infringe end users’ rights.

  1. Privacy

5.1. If you collect, use, transmit, store, or process in any other or
additional manner end users’ personally identifiable information (“PII”),
you will provide your end users clear and detailed notices and policy
(together: “Privacy Policy“), and will maintain all
necessary measures, practices and procedures, in compliance with all
applicable Laws.

5.2. You will make the Privacy Policy easily accessible to end users, prior
to the installation process of the Offering, in the course of the
installation, and through the Offering.

5.3. Where required under the applicable Laws, you will receive end users’
appropriate consent to the Privacy Policy.

5.4. You will include the Mobfox SDK Minimum Terms, attached hereto in
Schedule B, as part of your Privacy Policy.

5.5. You will maintain full compliance with guidelines for protecting the
privacy of end users, as issued by or for the iOS, Android, and any other
applicable mobile platform.

5.6. You will not intentionally use the Offering to collect any information
about an end user who is under the age of 13 years old, or any other
children-related age-threshold under the applicable Law.

5.7. If your Offering is directed to children under 13 years old, or under
any other age-threshold pursuant to the applicable Law, or if you have
actual knowledge that you are collecting personal information from children
under that abovementioned age, you will maintain full compliance with
relevant Laws, including – if applicable – the US Children Online Privacy
Protection Act (COPPA), and the provisions applicable to the protection of
a child’s data under Regulation (EU) 2016/679 of the European Parliament
and of the Council (GDPR). Without limiting the aforesaid, you will provide
all necessary notices and receive all necessary consents, including
verifiable parental consent, as required under the applicable Law, to the
Mobfox use of personal information. See further details in Schedule A to
these guidelines (the Mobfox SDK Minimum Terms).

  1. Distinguishing Ads from other Content

6.1. You will clearly and conspicuously distinguish ads displayed on your
Offering from the Offering’s content and features;

6.2. Where required under the applicable Law, you will include all
necessary advertising notices in or next to the ads.

6.3. You will follow all applicable Laws related to the display of ads.

  1. Uninstallation

7.1. You must provide your end users with a clear and accessible option to
easily uninstall the Offering. Upon uninstallation of the Offering you will
completely terminate your access to the end user’s device.

  1. Traffic Generation

8.1. You will not generate or try to gain traffic or installations of your
Offering by using any fraudulent activity, including without limitation by:
(i) creating fictitious traffic of your Offering; (ii) installing or
uninstalling any application, software or code on an end user’s device,
without appropriate consent; (iii) causing or providing incentives to other
persons to increase traffic, revenue, impressions, or clicks, or to use
automated measures to generate traffic, impressions or clicks; (iv)
engaging in any other misleading, deceptive or other illegal activity
whatsoever.

  1. Matomy’s Rights

9.1. You will not violate, breach, infringe or misappropriate the rights of
Matomy, and its employees, contractors, partners, affiliates, agents and
any other person who acts on Matomy’s behalf, including intellectual
property rights of any kind, privacy and publicity rights.

  1. Indemnification

You will indemnify Matomy and its employees, directors, contractors,
partners, affiliates, agents and any other person who acts on Matomy’s
behalf, and hold them harmless from and against any loss, damage and
expenses incurred as a result of, or in connection with your breach of
these guidelines.

Schedule B

Mobfox SDK Minimum Privacy Terms

A publisher will embed the following Mobfox SDK Minimum Privacy Terms in
the publisher’s privacy notice to end users.

Interest-Based Ads

We may share your personal information with Matomy Group (Matomy), a
leading digital performance-based advertising group. Matomy puts great
efforts in making sure that your personal information is safe and used
properly.

Matomy collects personal information from mobile applications and devices,
subject to permission, such as your gender, age, location and other
attributes. Further collected data includes your device attributes (such as
model, make, device agent details, device ID) and traffic/session
information, including session durations, IP address and additional
activity information. Matomy may use additional users’ statistical
analysis-driven data, such as your age group, areas of interest and general
location.

Matomy uses this information to analyze trends, understand users’
activities and gather demographic information to enable, manage and develop
its interest-based ads related services, and share data with affiliates and
business partners.

Matomy retains your information in accordance with Matomy’s legitimate
business purposes for processing the information. Thereafter the data is
removed, archived for restricted legitimate interests, or anonymized.
Non-identifying information may be kept without time and use limitations.

In both iOS and Android devices you may signal your wish to opt out of
receiving interest-base ads via your device settings.

At any time, you may contact Matomy’s Privacy Team: [email protected] with
any question or complaint about the use of your data, or with a request to
exercise your rights under the applicable law, including, to the extent
applicable, your rights of access, rectification, portability, erasure,
restriction of processing, objection to processing, profiling and automated
processing. Matomy may need to ask you to provide certain credentials to
verify your identity.

The above terms describe the essentials of Matomy’s privacy practices for
mobile applications and devices. For further information on how Matomy uses
and secures your information, please visit the Matomy Privacy Policy at:
http://www.matomy.com/global-privacy-policy/, as amended from time to time.

 

Annex A

DATA PROCESSING ADDENDUM

  1. THIS DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA”) reflects the parties’ agreement on the Processing of Personal Information that Privacy Laws and Regulations apply in regard thereof. For the purpose of this Annex A, you will be addressed as a “Customer”.

All capitalized terms not defined herein will have the meaning set forth in the Agreement. All terms under the Agreement apply to this DPA, except that the terms of this DPA will supersede any conflicting terms under the Agreement.

In the course of providing the service to Customer pursuant to the Agreement (the “Service“), Matomy may Process Personal Information on behalf of Customer. The parties agree to comply with the following provisions under this DPA with respect to Customer’s Personal Information processed by Matomy on behalf of Customer as part of the Services.

  1. DEFINITIONS

2.1.        “Affiliate” means any legal entity directly or indirectly controlling, controlled by or under common control with a party to the Agreement, where “control” means the ownership of a majority share of the voting stock, equity, or voting interests of such entity.
2.2.        “Matomy” means Matomy Media Ltd. and its Affiliates.
2.3.        “Matomy Information Security Policy” means the information security documentation applicable to the specific Service purchased by Customer, as updated from time to time, and made available by Matomy upon request.

2.4.        “Individual” means a natural person to whom Personal Information relates, also referred to as “Data Subject” pursuant to EU data protection laws and regulations.

2.5.        “Personal Information ” means information about an identified or identifiable Individual, also referred to as “Personal Data ” pursuant to EU data protection laws and regulations, which Matomy Processes under the terms of the Agreement.

2.6.        “Personnel” means the employees, agents, consultants, and contractors of Customer and Customer’s Affiliates.

2.7.        “Privacy Laws and Regulations” means Regulation (EU) 2016/679 (GDPR), when it takes effect, as applicable to the Processing of Personal Information under the Agreement.

2.8.        “Privacy Shield” means the EU-US Privacy Shield Framework, as administered by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of July 12, 2016.

2.9.        “Privacy Shield Principles” mean the Privacy Shield Principles, as supplemented by the Supplemental Principles and contained in Annex II to the European Commission Decision C(2016)4176 of July 12, 2016, as may be amended, superseded or replaced.

2.10.     “Process” or “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, blocking, erasure or destruction.

  1. DATA PROCESSING

3.1.        Scope and Roles. This DPA applies when Personal Information is Processed by Matomy as part of Matomy’s provision of the Service, as further specified in the Agreement and the applicable order form. In this context, to the extent that provisions under the GDPR apply to Personal Information that Matomy processes for Customer under the Agreement, Customer is the Data Controller and Matomy and applicable Affiliates are the Data Processor under such laws and regulations.
3.2.        Instructions for Matomy’s Processing of Personal Information. Matomy will only Process Personal Information on behalf of and in accordance with Customer’s instructions. Customer instructs Matomy to Process Personal Information for the following purposes: (i) Processing in accordance with the Agreement and applicable order forms, including, without limitation to provide the Service, and for back-up and disaster recovery, cyber security, operations, control, improvements and development of Matomy’s Service, fraud and service misuse prevention and legal and administrative proceedings; and (ii) Processing to comply with other reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement and comply with applicable Privacy Laws and Regulations. Processing outside the scope of this DPA (if any) will require prior written agreement between Matomy and Customer on additional instructions for processing, including agreement on any additional fees Customer will pay to Matomy for carrying out such instructions.

  1. NOTICE AND CONSENT

4.1.        Customer undertakes to provide all necessary notices to Individuals and receive all necessary permissions and consents, as necessary for Matomy to process Personal Information on Customer’s behalf under the terms of the Agreement and this DPA, pursuant to the applicable Privacy Laws and Regulations.

4.2.        To the extent required under the applicable Privacy laws and regulations, Customer will appropriately document the Individuals’ notices and consents.

  1. RIGHTS OF INDIVIDUALS

5.1.        Requests. Matomy will, to the extent legally permitted, promptly notify Customer if Matomy receives a request from an Individual, who’s Personal Information is included in Customer’s Personal Information, or a request by the Individual’s legal guardians, to exercise the right to access, correct, amend, or delete Personal Information related to the Individual, or to exercise such other personal right that the Individual is entitled to pursuant the applicable Privacy laws and regulations.

5.2.        Assistance. Matomy will provide Customer with commercially reasonable cooperation and assistance in relation to handling the Individual’s request, to the extent legally permitted and to the extent Customer does not have access to such Personal Information through its use of the Service. Except if not permitted under the applicable Privacy laws and regulations, Customer will reimburse Matomy with any costs and expenses related to Matomy’s provision of such assistance.

5.3.        Customer undertakes to direct individuals who wish to revoke their consent or to exercise their right to be forgotten to Matomy’s opt-out feature at: [email protected]

  1. ASSISTANCE IN COMPLIANCE

At Customer’s written request, Matomy will cooperate with and make commercially reasonable efforts to assist Customer in complying with Customer’s obligations pursuant to Articles 32 to 36 to the GDPR, taking into account the nature of processing and the information available to Matomy.

  1. Matomy PERSONNEL

7.1.        Limitation of Access. Matomy will ensure that Matomy’s access to Personal Information is limited to those personnel who require such access to perform the Agreement or provide its services.

7.2.        Confidentiality. Matomy will impose appropriate contractual obligations upon its personnel engaged in the Processing of Personal Information, including relevant obligations regarding confidentiality, data protection, and data security. Matomy will ensure that its personnel engaged in the Processing of Personal Information are informed of the confidential nature of the Personal Information, have received appropriate training in their responsibilities, and have executed written confidentiality agreements. Matomy will ensure that such confidentiality agreements survive the termination of the employment or engagement of its personnel.

  1. AFFILIATES AND THIRD-PARTY SERVICE PROVIDERS

8.1.        Affiliates. Some or all of Matomy’s obligations under the Agreement may be performed by Matomy Affiliates.

8.2.        Agents. Customer acknowledges and agrees that Matomy and Matomy’s Affiliates respectively may engage third-party service providers in the performance of the Service on Customer’s behalf. All Affiliates and agents (also referred to as ‘other processors’ under the GDPR) to whom Matomy transfers Personal Information to provide the Service on behalf of Customer have entered into written agreements with Matomy or such other binding instruments that bind them by substantially the same material obligations under this DPA.

8.3.        Liability. Matomy will be liable for the acts and omissions of its Affiliates and agents to the same extent that Matomy would be liable if performing the Service of each Affiliate or agent directly, under the terms of Agreement.

8.4.        Objection. To ensure compliance with applicable Privacy Laws and Regulation, Customer may object to any engagement by Matomy with a new agent to Process Customer Personal Information on Customer’s behalf, within five (5) business days following Matomy’s notice to Customer of its engagement with the new agent. If Customer sends Matomy a written objection to the new agent, Matomy will make commercially reasonable efforts to provide Customer the same level of Service without the using the new agent to Process Customer Personal Information. Nothing in this section prejudices the parties’ rights and obligations under the Agreement.

  1. ONWARD AND TRANS-BORDER TRANSFER

9.1.        Transfer of Personal Information related to Individuals within the EU to Matomy’s data hosting services in the US is made in accordance with such hosting services’ self-certification with the Privacy Shield. Transfer of Personal Information related to Individuals within the EU to Israel is made in accordance the EU Commission decision 2011/61/EU of January 31, 2011, on the adequate protection of Personal Information by the State of Israel regarding automated processing of Personal Information.

9.2.        All Matomy Affiliates and agents to whom Matomy transfers Personal Information to provide the Service are certified to the Privacy Shield, or provide at least the same level of protection for the Personal Information as is required by the relevant principles of the Privacy Shield and comply with the requirements under the Privacy Shield for the onward transfer of Personal Information to agents, or have executed such other lawful instruments for lawfully transferring Personal Information related to Individuals within the EU to other territories, such as by executing the Standard Contractual Clauses in the form attached and incorporated by reference to this DPA as Exhibit A, or any successor thereof or an alternative lawful data transfer mechanism, or alternatively the Personal Information is transferred to a country with an adequacy recognition by the EU Commission.

  1. INFORMATION SECURITY

10.1.     Controls. Matomy will maintain administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer’s Personal Information pursuant to the Matomy Information Security Policy. Matomy regularly monitors compliance with these safeguards. Matomy will not materially decrease the overall security of the Service during the term of the Agreement.

10.2.     Policies and Audits.

Customer may audit Matomy’s compliance with its obligations under this Data Processing Addendum up to once per year (“Data Protection and Security Audit”), provided, however, that any Data Protection and Security Audit is subject to the following cumulative conditions: (i) The Data Protection and Security Audit will be pre-scheduled in writing with Matomy, at least 60 days in advance; (ii) All Customer personnel who perform the Data Protection and Security Audit, whether employed or contracted by Customer, will execute Matomy’s standard non-disclosure agreement prior to the initiation of the Data Protection and Security Audit, and a third party auditor will also execute a non-competition undertaking; (iii) Customer will take all necessary measures and verify that the auditors do not access, disclose or compromise the confidentiality and security of non-Customer data on Matomy’s information and network systems; (iv) Customer will take all measures to prevent any damage or interference with Matomy and its Affiliates’ information and network systems; (v) Customer will bear all costs and assume responsibility and liability for the Data Protection and Security Audit and for any failures or damage caused as a result thereof; (vi) Customer will keep the Data Protection and Security Audit results in strict confidentiality, will use them solely for the specific purposes of the Data Protection and Security Audit under this section, will not use the results for any other purpose, or share them with any third party, without Matomy’s prior explicit written confirmation; and (vii) If Customer is required to disclose the Data Protection and Security Audit results to a competent authority, Customer will first provide Matomy with a prior written notice, explaining the details and necessity of the disclosure, and will provide Matomy with all necessary assistance to prevent the disclosure thereof.

  1. SECURITY BREACH MANAGEMENT AND NOTIFICATION

11.1.     Breach prevention and management. Matomy will maintain security incident management policies and procedures and will, to the extent required by law, promptly notify Customer of any unauthorized access to, acquisition of, or disclosure of Customer Personal Information, by Matomy or its Affiliates or agents of which Matomy becomes aware of (a “Security Incident”).

11.2.     Remediation. Matomy will promptly make reasonable efforts to identify and remediate the cause of such a Security Incident.

  1. DELETION AND RETENTION OF PERSONAL INFORMATION

12.1.     Data Deletion. After the end of the provision of the Service, Matomy will return Customer’s Personal Information to Customer or delete such data, including by de-identifying thereof.

12.2.     Data Retention. Notwithstanding, Customer acknowledges and agrees that Matomy may retain copies of Customer Personal Information as necessary in connection with its routine backup and archiving procedures and to ensure compliance with its legal obligations and its continuing obligations under the applicable law, including to retain data pursuant to legal requirements and to use such data to protect Matomy, its Affiliates, agents, and any person on their behalf in court and administrative proceedings.

  1. DISCLOSURE TO COMPETENT AUTHORITIES

Matomy may disclose Personal Information (a) if required by a subpoena or other judicial or administrative order, stock exchange or if otherwise required by law; or (b) if Matomy deems the disclosure necessary to protect the safety and rights of any person, or the general public.

  1. ANONYMIZED AND AGGREGATED DATA

Matomy may process data based on extracts of Personal Information on an aggregated and non-identifiable forms, for Matomy’s legitimate business purposes, including for testing, development, controls, and operations of the Service, and may share and retain such data at Matomy’s discretion, provided that such data cannot reasonably identify an Individual.

  1. TERM

This DPA will commence on the same date that the Agreement are effective and will continue until the Agreement are expired or terminated, pursuant to the terms therein.

  1. COMPLIANCE

16.1.     Matomy’s compliance team is responsible to make sure that all relevant Matomy’s personnel adhere to this DPA.

16.2.     Matomy’s compliance team can be reached at: <a href=”mailto:[email protected]”>[email protected]</a>

  1. DISPUTE RESOLUTION

Each Party will create an escalation process and provide a written copy to the other Party within five (5) business days of any dispute arising out of or relating to this DPA. The escalation process will be used to address disputed issues related to the performance of this DPA, including but not limited to technical problems. The Parties agree to communicate regularly about any open issues or process problems that require prompt and accurate resolution as set forth in their respective escalation process documentation. The Parties will attempt in good faith to resolve any dispute arising out of or relating to this DPA, before and as a prior condition for commencing legal proceedings of any kind, first as set forth above in the escalation process and next by negotiation between executives who have authority to settle the controversy and who at a higher level of management than the persons with direct responsibility for administration of this DPA. Any Party may give the other Party written notice of any dispute not resolved in the normal course of business. Within two (2) business days after delivery of the notice, the receiving Party shall submit to the other a written response. The notice and the response will include (a) a statement of each Party’s position and a summary of arguments supporting that position and (b) the name and title of the executive who will represent that Party and of any other person who will accompany the executive. Within five (5) business days after delivery of the disputing Party’s notice, the executives of both Parties shall meet at a mutually acceptable time and place, including telephonically, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one Party to the other will be honored. All negotiations pursuant to this clause are confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.

  1. MISCELLANEOUS

18.1.     Any alteration or modification of this DPA is not valid unless made in writing and executed by duly authorized personnel of both parties.

18.2.     Invalidation of one or more of the provisions under this DPA will not affect the remaining provisions. Invalid provisions will be replaced to the extent possible by those valid provisions which achieve essentially the same objectives.