These Terms of Service (“Terms”) are entered into between Total Media Ltd., (“Total Media”) and the party (“Publisher”) employing Total Media’s services “(Services”). By clicking on the “Sign Up” button below Publisher indicates that Publisher understands and accepts all of these Terms.
These Terms, together with the Master Service Agreement and any applicable Service Order Forms, constitute the “Agreement”. Subject to the Agreement, the Services shall deliver digital ad impressions (“Impressions”) to native ad placements (“Native Ad Placement Areas” or “Ad Placements”) on select Publisher webpages(s).
1.2 Publisher is solely responsible for the language, customization, and accuracy of Publisher’s website content in which Ad Placements appear, and for all materials and content related to the delivery of Impressions to Ad Placements including, but not limited to: (a) the creation of Ad Placement descriptions and logos; (b) the placement of ad tags into the relevant Ad Placements; (c) the acceptance or rejection of ads submitted to Publisher’s Ad Placements; (d) the accuracy and appropriateness of materials Publisher posts on Publisher’s Site(s); (e) ensuring that content published on Publisher’s website(s) does not violate or infringe upon the rights of any third party; and are not, in Total Media’s sole discretion, defamatory, obscene, threatening, libelous, abusive, hateful, or illegal.
1.3 Publisher will not engage in any fraudulent or unethical activities, including without limitation (a) sending unsolicited e-mail (“spam”) to attract users to any ad, Ad Placement, or page on which an Ad Placement resides, (b) indirect traffic or “link laundering”, (c) driving traffic from incentivized advertising, (d) payment of users or bloggers to visit pages, and (e) the usage of “bots” to create traffic or clicks or otherwise commit click fraud.
1.4 If Publisher or Total Media requests that any portion of Publisher’s or advertiser’s content in or near the Native Ad Placement Area be deleted, replaced or made inaccessible because such content may contain errors, is or could be subject to a third party claim or for any other reason, then Publisher shall use commercially reasonable efforts to promptly correct or remove the particular piece of the content from the vicinity of the Native Ad Placement Area.
1.5 Publisher shall protect any passwords or similar account security measures and take full responsibility for Publisher’s own, and third party, (i) use of (ii) changes to and (iii) errors or omissions associated with Publisher Ad Placements and account data.
1.6 Publisher shall maintain an ads.txt file on any domains they monetize with Total Media listing the valid supply paths for their programmatic inventory, including Total Media and other partners they use. Publisher shall use commercially reasonable efforts to assure that only known valid supply path partners are listed in their ads.txt file. Ads.txt file shall comply with the then-current ads.txt standard, as may be amended from time to time by the IAB tech lab as posted here.
1.7 Services may place a link in or near a Native Ad Placement Area, which may be titled, e.g., “Ad,” “Ad by [_____],” or other similar language, to enable users to obtain more information regarding third-party service provider and/or third-party service provider Content. Publisher shall not (and shall not permit any third party to) in any way block, disable, alter or interfere with such link.
2.1 Publisher shall be solely responsible for each submission or order, including all ad creative or content (“Creative”), any Creative attributes (including titles and/or descriptions) and all other order parameters (including any budgets, bids, targeting or other data). Based on the order, the Services may deliver Impressions to the Creative. The destination websites, and sizes, placements and positioning of the Creative will be determined by the Services. Publisher is liable for all Impressions delivered by the Services.
2.2 Publisher acknowledges that any changes to Creatives or order parameters, whether in initiation of a new campaign or to adjust or halt a “live” campaign, may require as long as 24 hours to take effect and that Publisher is liable for all Impressions delivered by the Services.
2.3 The Services may provide estimates of the number Impressions available given certain order parameters. Publisher acknowledges that these estimates are made in advance of Creative or campaign delivery and without full knowledge of the actions of future advertisers or publishers and are solely for the convenience of the Publisher. Any Impression estimates provided Publisher by the Services are not to be interpreted as a guarantee nor does Total Media make any representation of the accuracy of these estimates or accept any obligation to deliver any number of estimated Impressions.
2.4 Total Media makes no representation or guarantee of the number of clicks, shares, views or other engagements any Creative may actually receive and Total Media will not be held responsible for click fraud, technological issues, or other potentially invalid activity that may affect the cost of delivering Creatives and/or the validity of reported data.
2.5 Publisher shall protect any passwords or similar account security measures and take full responsibility for Publisher’s own, and third party, (i) use of (ii) changes to and/or (iii) errors or omissions to any campaigns. Publisher is liable for all Impressions delivered by the Services.
2.6 In the event that the Services are unable to deliver Impressions in the amount desired by Publisher for the Creative, Publisher’s sole remedies shall be to (i) extend the period of the applicable Creative or (ii) increase bids and/or budgets or (iii) to replace the Creative with other Creative (subject to Total Media’s approval) to complete the campaign and/or (iv) broaden targeting parameters. In no event shall Total Media be liable for any failure to deliver Impressions.
2.7 Publisher acknowledges that Total Media retains the right to prohibit or halt delivery of any Creative for any or no reason and at its sole discretion.
3.1 The Services provides Publisher with daily reports that provide Publisher data and information about the number of Impressions delivered per Ad Placement per day. It is understood and agreed that (i) daily reports may not be available for up to 48 hours following completion of the day (ii) the final monthly reports provided by the Services may differ from the daily reports (iii) the final reports will provide the conclusive basis for Total Media’s payments to Publisher and (iv) Total Media is under no obligation to provide any data other than that available in the Services.
3.2 Total Media makes no representation or guarantee of the number of Impressions, clicks, shares, views or other engagements any ad or Ad Placement may actually receive and Total Media will not be held responsible for click fraud, technological issues, or other potentially invalid activity that may affect the cost of delivering Impressions and/or the validity of reported data. In no event shall Total Media be liable for any failure to deliver Impressions.
3.3 Total Media reserves the right to monitor, on its own or with the assistance of third parties, Publisher for compliance with these Terms and Publisher acknowledges that Total Media retains the right to prohibit or halt delivery of any ad to any Ad Placement for any or no reason and at its sole discretion.
4.1 Publisher shall own and retain all right, title, and interest in and to: (a) any data or information derived by Publisher’s use of the Services (collectively, “Derived Data”) and (b) any data or information transmitted by Publisher to Total Media in connection with its use of the Services (collectively, “Publisher-Provided Data”), provided, however, that Publisher hereby grants to Total Media a worldwide, royalty-free, non-exclusive license to use the Derived Data and Publisher-Provided Data for the purposes of fulfilling its obligations hereunder and for other legitimate Total Media purposes. In addition, Total Media may retain and use for its own purposes any Publisher Provided-Data that Total Media aggregates (i.e., renders in a form such that no Publisher Provided-Data is attributable to a specific Publisher), and share such information about Publishers with advertisers and business partners, including syndication partners, sponsors, and other third parties.
4.2 All Advertisements submitted to the Services by an advertiser including, without limitation, all intellectual property rights in the same, shall remain the advertiser’s sole and exclusive property. Publisher is granted a non-exclusive, limited, revocable right to use the trademarks, banners, links, images and other material (“Material”) provided by Total Media and its advertisers to Publisher. Publisher may not modify the Material in any way without the prior express written consent of Total Media or such advertisers. Without limiting any other provision of these Terms or the Agreement, Publisher agrees that failure to strictly abide by the terms of this paragraph shall result in significant damages to Total Media or such advertisers and Publisher agrees to fully compensate Total Media or such advertisers for any such damages.
4.3 Total Media shall own and retain all right, title, and interest in and to the Services (except for any licensed content and software components included therein). Publishers agree not to copy, alter, modify, or create derivative works of the Services or otherwise use the Services in any way that violates the use restrictions contained in this Agreement. Total Media does not grant to Publisher any license, express or implied, to the intellectual property of Total Media or its licensors. Total Media’s graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of Total Media in Europe and/or other countries. Total Media’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without Total Media’s prior written permission.
Notice and Choice Requirements for European Union Residents.
Effective no later than May 2018, where Personal Data (as that term is defined under the General Data Protection Regulation (‘GDPR”)) is collected from residents of European Union States, for purposes described in this Agreement, Publisher must, on each Publisher Property:
5.1 Any marked confidential information and proprietary data provided by one Party shall be deemed “Confidential Information” of the disclosing Party. Confidential Information shall also include information provided by one Party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving Party to anyone except as employee or agent who has a need to know same, and who is bound by confidentiality obligations. Neither Party will use any portion of Confidential Information provided by the other Party hereunder for any purpose other than those provided for under this agreement. Notwithstanding, anything contained herein to the contrary, the term “Confidential Information” shall not include information which (i) was previously known to the receiving Party; (ii) was or becomes generally available to the public through no fault of the receiving Party; (iii) was rightfully in receiving Party’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to receiving Party by the disclosing Party; (iv) was developed by employees or agents of receiving Party independently of and without reference to any information communicated to receiving Party by disclosing Party; or (v) was communicated by disclosing Party to an unaffiliated third party free of any obligation or confidence. Notwithstanding the foregoing, either Party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law, as required by the rules of any applicable securities exchange or as necessary to establish the rights of either Party under this agreement, provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
6.1 Each party represents and warrants to the other party that it has all necessary rights and authority to enter into this Agreement and grants the rights and licenses thereunder, and the execution of this Agreement and the performance of its respective obligations and duties thereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.
6.2 EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, TOTAL MEDIA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED — INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE — ABOUT ITS SERVICE AND THE PERFORMANCE OR SUCCESS ON BEHALF OF PUBLISHER, OR THAT THE SERVICES WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE.
7.1 Each party shall defend, indemnify and hold harmless the other party and its respective agents, affiliates, subsidiaries, directors, officers, employees and contractors against any and all third party claims resulting from the breach of such party’s duties, obligations and representations under this Agreement.
7.2 In connection with any such claim, (i) the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (provided that the failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations herein, except to the extent it has been damaged thereby); (ii) the indemnifying party shall have sole control of the defense or settlement of the claim (provided that the indemnifying party may not enter into any settlement that may adversely affects the rights of obligations of the indemnified party without the indemnified party’s prior written consent); (iii) at the indemnifying party’s request and expense, the indemnified party cooperating in the investigation and defense of such claim; and (iv) the indemnified party shall have the right to participate in its defense with counsel of its own choosing at the indemnified party’s expense.
7.3 EXCEPT WITH RESPECT TO CLAIMS ARISING FROM A PARTY’S INDEMNITY OBLIGATIONS, WILLFUL MISCONDUCT OR A BREACH OF THE CONFIDENTIALITY PROVISION IN THIS AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, VENDORS OR AGENTS FOR ANY ACTION REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN TORT OR CONTRACT, ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION SHALL BE LIMITED TO THE AMOUNT OF FEES PAYABLE BY TOTAL MEDIA UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST REVENUES OR LOST PROFITS, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.1 Neither Party shall assign any of its rights or obligations hereunder without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement and its rights and obligations hereunder to a successor of such Party by way of merger, consolidation or acquisition of all or substantially all of the assets or business of such assigning Party so long as such successor shall agree to be bound by all of the terms and provisions hereof. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
8.2 This Agreement shall be governed by the laws of the State of Israel, without giving effect to principles of conflicts of law. Each Party, to the extent permitted by applicable law, hereby irrevocably and unconditionally (i) submits to the courts located in Tel-Aviv; (ii) agrees that any action or proceeding concerning this agreement will be brought exclusively in such courts; and (iii) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding in any such court was brought in an inconvenient court and agrees not to claim or plead the same.
8.3 No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms.
8.4 Neither party shall be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control. Neither party shall be liable for any unavailability or inoperability of the Internet, technical malfunction, or computer error or corruption resulting in loss of data or other harm.
8.5 Sections 5, 7, and 8, together with any outstanding undisputed payment obligation, shall survive the termination of this Agreement.
8.6 Total Media may modify any of the terms and conditions contained in these Terms, at any time and in its sole discretion, by notice of Publisher no fewer than seven (7) days in advance of the effective date of the proposed modifications. Modifications may include, for example, changes in the scope of the Services, changes to the license of the Services, changes in terminology, and changes in reporting or data management policies. Publisher’s continued use of the Services on the 8th day following notification constitutes binding acceptance of such change.