General Terms and Conditions
Digital Media Innovations Ltd. (“DMI”) will promote the Advertiser’s products or services by transmitting creative and text provided by the Advertiser (“Creative”), all according to the terms hereinafter (the “Services”). The Advertiser, its clients and agents or anyone on their behalf (herein collectively referred to as “Advertiser”) confirm that DMI’s sole obligation is to render the Services, according to the terms hereinafter.
1. Terms of Payment
The parties shall expressly specify in the IO or in their correspondence, whether the campaign is prepaid or on a net terms basis.
In case of a prepaid campaign:
The total cost must be paid in full before rendering the Services. All funds must be transmitted in the currency specified in the IO. All ancillary fees must be paid by the Advertiser. The initial budget specified above and paid in advance will be non-refundable, unless decided otherwise by DMI at its sole discretion, and on a case by case basis.
Each invoice will be sent by DMI upon the earlier of the end of each calendar month and the total spending of the initial budget.
If the Advertiser wishes to terminate this Insertion Order while the initial prepaid budget is not totally spent, DMI reserves the right at its sole discretion, either:
– to keep the remainder of the initial budget at its sole discretion; or alternatively
– to return to the Advertiser the remainder of the initial budget, by deducting therefrom a set-up fee of USD 5,000.
In case of payment on a net terms basis:
Each invoice will be sent by DMI upon completion of each month’s provision of services.
Advertiser will make payment within the period mentioned in the IO as of receipt of invoice (the “Due Date”). Any delayed payment shall bear an interest of 7% per annum which shall become due as of the first month of delay after the Due Date.
It is hereby agreed that DMI reserves the right not to provide any services according to these terms and conditions should the Advertiser’s debt to DMI, from pending or past IOs, exceed 75,000 USD.
2. Campaign Instructions
Advertiser shall have sole and full responsibility with respect to Creative. DMI shall not have any liability with respect to Creative, including but not limited to the Creative’s form or content, to errors in Creative position or placement, or typographic errors of any kind.
In addition, DMI reserves the right within its discretion to reject or remove from its Site any Creative for which the Creative Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon DMI or any of its affiliates.
This right shall not be deemed to have been waived by acceptance or actual use of any Creative.
DMI will, within two (2) business days of the start date on the IO, provide confirmation to Advertiser, either electronically or in writing, stating whether the components of the IO have begun delivery.
DMI will make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out daily. Once DMI has provided the online or electronic report, it agrees that Advertiser is entitled to reasonably rely on it, subject to provision of DMI’s invoice for such period.
Advertiser shall report any discrepancy or claim about said reporting by no later than 48 hours as of the date of the weekly report. Should the Advertiser not submit any claim within such time period, the weekly report will be deemed accepted by the Parties, and the Advertiser shall not have any further claim against DMI, the Third-Party Ad Server or anyone on their behalf with regard thereto.
The Advertiser will provide DMI access and/or daily reports with respect to the campaign statistics, including without limitation frequent of Ad requests, Impressions, Revenue, and other variables as may be defined in the IO. In the event that the Advertiser fails to provide such access and/or reports for a period of 48 hours, then the campaign statistics and all payments shall be calculated solely based upon DMI records.
4. Third Party/Direct Ad Serving and Tracking
a. Ad Serving and Tracking. DMI will track delivery through a Third-Party Ad Server to run on its properties or through a server to server integration (the “Ad Server”). Advertiser may track delivery through another ad server for his own purposes.
b. Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO will be taken from the Ad Server used by DMI. The Advertiser hereby agrees that it has been given the possibility to choose between several ad servers working with DMI. Upon signature of this IO, the Advertiser hereby waives any further claim about the identity of such ad server.
c. Ad Server Reporting Access. DMI will provide the Advertiser with online or automated access to relevant and non-proprietary statistics from the Ad Server within one (1) day after campaign launch. The Advertiser will notify DMI if Advertiser
has not received such access. If such online or automated reporting is not available, DMI will provide placement-level activity reports to the Advertiser in a timely manner, as mutually agreed to by the parties. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary.
d. Discrepant Measurement. The Advertiser agrees that it shall pay the invoiced fees even in case of a discrepancy between Ad Server’s measurement and Advertiser’s other measurement which does not exceed 10% over the invoiced period.
If the difference between Ad Server’s measurement and Advertiser’s other measurement exceeds 10% over the invoice period and Ad Server’s measurement is higher, then the parties will facilitate in good faith a reconciliation effort between Ad Server’s measurement and Advertiser’s other measurement.
e. Fraud. The Advertiser shall not be entitled to allege that Ad Server’s measurements are fraudulent unless it has sufficient, verifiable and indisputable evidence that the discrepancy was due to fraud or willful misconduct to falsify the measurement.
5. Representations and Warranties
DMI is not responsible for the success or failure of Advertiser’s advertising campaign. All representations and warranties, expressed or implied, including without limitation, any warranties or merchantability or fitness of Service for a particular purpose, are hereby disclaimed by DMI. Traffic priority is set to the highest bidder over the network, DMI cannot guarantee for traffic volume over any period of time. Reporting is according to DMI’s adserver and statistics.
Advertiser acknowledges the electronic nature of the Services to be supplied hereunder and the inherent risk that communications by electronic means may not reach their intended destination or may do so much later than intended for reasons outside DMI’s control.
DMI does not represent nor warrant that the campaign will fit for Advertiser’s purpose. DMI does not undertake to reach a minimal number of targeted users, clicks, purchases, or any other objective. Should the Advertiser not be satisfied of the campaign and the results obtained, both parties shall attempt in good faith to review the components of the campaign, in a manner satisfactory to the Advertiser. Any changes to the campaign as a result of such review shall apply as of the immediately following IO. However, the Advertiser shall not be entitled to any refund in case of dissatisfaction about the results of the campaign.
6. Limitation of Liabilities
DMI SHALL NOT HAVE ANY LIABILITY TO THE ADVERTISER FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT DMI’S TOTAL OBLIGATIONS AND/OR LIABILITY CAN NEVER EXCEED THE CHARGE FOR THE TOTAL COST OF THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH HEREIN, DMI MAKES NO OTHER WARRANTIES TO ADVERTISER AND DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
DMI DOES NOT WARRANT OR REPRESENT THAT THE SERVICES UNDER THIS AGREEMENT WILL BE PROVIDED, WITHOUT INTERRUPTIONS OR SHALL BE ERROR FREE. DMI WILL NOT BE LIABLE TO ADVERTISER FOR DAMAGES, LOSSES, COSTS OR LIABILITIES OF ANY KIND WHATSOEVER SUFFERED OR INCURRED FROM SYSTEM DOWNTIME OR OTHER FAILURES OF THE ADVERTISING NETWORK, OR THAT THE ADVERTISING NETWORK OR THE SERVICES ARE OF SATISFACTORY QUALITY.
Advertiser guarantees that all Creative have been accepted and published upon the representation that the Advertiser is authorized to publish the entire contents and subject matter thereof. By signing this agreement, Advertiser shall indemnify and hold harmless DMI, its assignees, agents, employees, officers, directors, clients, acquirers and suppliers from and against any claims, actions, demands, losses or damages, including without limitation, any claim or suits for libel, defamation, violation of rights of privacy, plagiarism, trademarks, copyright infringement, unauthorized content (including text, illustrations, representatives, sketches, maps, labels, or other copyrighted matter) contained in Creative or in relation thereto or the unauthorized use of any person’s name or photograph, including without limitation, attorneys’ fees, costs related to in-house counsel time, court costs and witness fees arising thereof, relating or arising from the Service or the Creative or services or products marketed, introduced, discussed, or sold under this Agreement. The indemnity obligations of this paragraph are contingent on DMI giving reasonable written notice of any such claim or suit. DMI will have sole control over the litigation or settlement of such claim or suit. The provisions of this Paragraph shall survive the termination of this Agreement.
8. Brand & Logos
DMI shall have the right to use the advertiser’s logo on its Website and other marketing materials, identifying the advertiser as a customer.
DMI will NOT use the advertiser’s name, logos, or screenshots (“brand materials”) in ways that may be confusing, misleading, or suggest sponsorship, endorsement, or affiliation
9. Entire Agreement
This agreement reflects the sole agreement between the Parties relating to the subject matter and supersedes all prior understanding, writing, proposals, representations or communication, whether oral or written of either party. This agreement may only be amended by a written instrument executed by both parties.
10. Governing Laws and Disputes
This Agreement shall be deemed to have been made and entered into in the State of Israel, and the laws of the State of Israel shall govern its construction, validity and enforceability. Should a dispute arise under the terms of this Agreement, the prevailing party shall be entitled to recover its collection, processing, attorney, legal and court costs as well as its attorney’s fees and related costs incurred in any appeal thereof. Both parties agree to the jurisdiction of the Courts of the State of Israel.