Total Media Platforms Terms and Conditions
Last Updated on: January 31, 2019
Terms not defined anywhere else shall have the meaning given to them in this Agreement and schedules as follows; The words “include” and “including” will not limit the generality of any words preceding them;
“Ads” means advertising content.
“Affiliate” or “Group Company” means any entity that directly or indirectly controls, is controlled by, or is under common control with, a party.
“Agreement” means this Agreement together with all Order Forms in force from time to time, and includes materials that are incorporated by reference to a URL.
“Beta Feature” means any Service feature that is expressly identified as “Beta”, “Alpha”, “Experimental” or “Pre-Release” or that is otherwise expressly identified as unsupported.
“CPM” means Cost per Mille (thousand); Impressions count includes broken images (Unfilled Impressions), i.e. when no valid Ad defined by Customer is available to serve.
“CPC” means Cost per Click.
“Clicks” or “Click Tracker” means clicks on click-only Ads not delivered by the Service, measured in CPC i.e. if Customer uses a DoubleClick Tag to track a click without delivering an Ad impression associated with such Tag.
“Confidential Information” means the contents of the Agreement and all information disclosed under the Agreement by one party to the other party as recipient that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.
“Customer Data” means data derived from the use of the Services under the Agreement.
“Order Form” means (a) an order form, statement of work, addendum or schedule to this Agreement that sets out pricing and other terms with respect to a particular Service; or (b) a SOW.
“DoubleClick Guidelines” means instructions and regulations for using the Service provided by DoubleClick and/or Company from time to time.
“Files” means Ads, Creative and/or other files used in the provision of the Services.
“Personnel” means Customer’s directors, officers, employees, agents, other staff and subcontractors (including any of Customer’s subcontractors’ directors, officers, employees, agents, staff, and contractors).
“Intellectual Property Rights” means any and all rights existing from time to time under patent law, corporate law, semiconductor chip protection law, moral rights law, trade secret law, trademarks law, unfair competition law, publicity rights law, privacy rights law and any and all other proprietary rights, as well as any and all applications, renewals, extensions, restorations and re-instatements, thereof, now or hereafter in force and effect worldwide.
“Google Privacy Center“: at http://www.google.com/policies/privacy
“Impressions” means impressions of all Ads delivered by the Service, measured in a format determined by DoubleClick.
“System” means the DoubleClick hosted ad management system used to provide the Services.
“Services” means the services and products set out in each Order Form.
“SOW” means a statement of work entered into under this Agreement that sets out pricing and other terms for the provision of implementation, training and other professional services.
“System” means the DoubleClick hosted ad management system used to provide the Services.
“Tag” means code (e.g., HTML) or a web beacon (e.g., pixel tag, clear GIF) that
“Target Media” means:
- Consent-based email publications; and
- Software applications, provided that such software applications:
a. provide clear and conspicuous notice about the functionality of importance to the user;
b. obtain informed consent from the user before download;
c. provide an easy-to-use uninstall to the user; and
d. allow the user to maintain control over their computing environment, in each case, on which an Ad is served.
“Visitor” or “End Users” mean human end users of any Target Media.
2. Representations And Warranties Of The Parties
2.1. Customer will:
2.1.1. be liable for its Clients’ acts and omissions in connection with Services provided under the Agreement;
2.1.2. be solely responsible for all use of Services under the Agreement (including trafficking Ads and implementing Tags), soliciting Target Media, all inquiries relating to Ads, and the content of all Ads.
2.1.3. obtain all necessary rights and consents, including from Target Media operators, Visitors and Clients, to enable Customer to use the Services in accordance with the Agreement;
2.1.4. comply with Customer’s agreements with third parties, including Target Media owners and advertisers, as applicable, when using Services; and
2.1.5. comply with applicable Google Platforms Program Policies available at http://support.google.com/platformspolicy (as modified from time to time, “Policies”).
2.2. Customer represents and warrants that it has all necessary rights and authority: (i) to enter into this Agreement and each Order Form; (ii) to perform its obligations under this Agreement and each Order Form; and (iii) to act on behalf of each of its Clients.
2.3. Each party warrants to the other that it will use reasonable skill and care in complying with its obligations under the Agreement.
2.4. Customer may not resell any of the Services.
2.5 Subject to clause 7.2, Company and/or DoubleClick will have no liability (including in respect of indemnification obligations) arising out of or related to any Beta Features.
3.1. Customer will pay Company all Fees (other than Fees disputed in good faith) by the payment due date set out in Order Form.
3.2. Customer will pay all Fees in the currency and at the exchange rate (if any) specified in the applicable Order Form, such payment to be by electronic transfer to the account notified to it by Company or such other means expressly agreed to in writing by the parties.
3.3. Company may charge interest at the rate of 1% per month, as updated from time to time, from the date payment is due until the date of actual payment, whether before or after judgment, on any Fees which are overdue (other than Fees disputed in good faith).
3.4. Fees are stated exclusive of taxes. Customer will pay all taxes and other government charges (except for taxes on Company’s income), and reasonable expenses and outside attorneys’ fees Company incurs in collecting late payments that are not disputed in good faith.
3.5 Total Media shall be entitled to set off any amount owed to it by Customer against payments under this Agreement.
4.1. Customer will own all Customer Data; provided that Company and/or DoubleClick may use and disclose such Customer Data solely:
4.1.1. as aggregate Service statistics, which will not include personally identifiable information or information that identifies or would reasonably be expected to identify Customer or any of its Clients or Target Media;
4.1.2. to provide Services and enforce its rights under the Agreement.
4.1.3. if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to Customer and using reasonable endeavors to provide Customer with the opportunity to seek a protective order or the equivalent (at Customer’s expense)).
4.2. In addition to its rights under clause 4.1, Company and/or DoubleClick may use and disclose the results, data and feedback from any Beta Tests, for any purpose. These results, data and feedback will not include personally identifiable information or information that identifies or would reasonably be expected to identify Customer or any of its Clients or Target Media.
4.3. Subject to the provisions of this clause 4, the Customer Data will be treated as Confidential Information of Customer.
The recipient will not disclose the Confidential Information, except to Affiliates, subcontractors, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfil obligations under the Agreement, while using reasonable care to keep it confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser and using reasonable endeavours to provide the discloser with the opportunity to seek a protective order or the equivalent.
6. Privacy; Export; Prohibited Acts
6.1. Customer will use Services under the Agreement in compliance with all applicable privacy and export laws, rules, regulations and sanctions programs.
a. the usage of third-party technology;
b. the data collection and usage resulting from the Service; and
c. that third parties may be placing and reading cookies on Visitors’ browsers, or using web beacons to collect information in the course of advertising being served on the web sites, (this clause 6.2.1 will not be deemed to require those privacy policies to expressly identify Company and/or DoubleClick or any Service, unless otherwise required by law, rule or regulation);
6.2.2. includes information about Visitors’ options for cookie management; and
6.2.3. complies with all applicable privacy laws, rules and regulations.
6.3. In addition to its obligations under clause 2, Customer will use reasonable endeavours to ensure that a Visitor is provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on the Visitor’s device where such activity occurs in connection with the Services and where providing such information and obtaining such consent is required by law.
6.5. Customer will not, and will not assist or knowingly permit any third party to:
6.5.1. use the Services to collect or store personally identifiable information;
6.5.2 pass information to Company or DoubleClick that could use or recognise as personally identifiable information;
6.5.3. misappropriate any part of a Service;
6.5.4. modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect of Services or any part of a Service (except to the extent that such prohibition is not permitted by law);
6.5.5. damage or tamper with any part of a Service;
6.5.6. knowingly breach any security measure; or
6.5.7. provide to Company and/or DoubleClick any Ad that:
a. when viewed or clicked on by a Visitor, causes such Visitor’s computer to download any software application; or
b. is, or links to any content that is, defamatory, fraudulent, obscene, misleading or otherwise illegal.
7. Disclaimers and Limitation of Liability
7.1. No conditions, warranties or other terms apply to any Services or to any other goods or services supplied by Company and/or DoubleClick under the Agreement unless expressly set out in the Agreement. Subject to clause 7.2.2, no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).
7.2. Nothing in the Agreement will exclude or limit either party’s liability:
7.2.1. for death or personal injury resulting from the negligence of either party or their servants, agents or employees;
7.2.2. for fraud or fraudulent misrepresentation;
7.2.3. for payment of sums properly due and owing to the other in the course of normal performance of the Agreement; or
7.2.4. for any other liability that may not otherwise lawfully be excluded or limited.
7.3. Subject to clause 2.5, nothing in the Agreement will exclude or limit either party’s liability under clause 8.1 or 8.2 (Indemnities).
7.4. Subject to clauses 7.2 and 7.3, neither party will be liable under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise) for any:
7.4.1. loss of profit;
7.4.2. loss of anticipated savings;
7.4.3. loss of business opportunity;
7.4.4. loss of or corruption of data; or
7.4.5. indirect or consequential losses, suffered or incurred by the other party (whether or not those losses were within the contemplation of the parties at the date of the Agreement).
7.5. Subject to clauses 7.2, 7.3 and 7.4, Limitation Of Liability Company liability, in any case and for any reason, should not exceed 30% of its revenues received by Customer under this Agreement within the 12 months prior to the event giving rise to such liability.
8.1. Company will indemnify Customer against all damages and costs finally awarded against Customer in relation to a claim from a third party that the software and other technology used by DoubleClick to provide the Services infringes any trademark, trade secret, copyright, or U.S. patent of that third party);
8.2. Customer agrees to indemnify, defend and hold Company, DoubleClick and its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively “Indemnified Person(s)“) harmless from and against any and all third party claims including a claim from a third party that the creative, technology, data or other materials provided by Customer or Customer’s client to Company and/or DoubleClick or otherwise provided and utilised by Customer or in connection with the Services (“Customer Materials”) infringes any trademark, trade secret, copyright, or U.S. patent of that third party, and any other liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s).
8.3. Each party will:
8.3.1. notify the other such claim (each a “Third Party Claim”) promptly after becoming aware of it;
8.3.2. provide the other with reasonable information, assistance and cooperation in responding to and, where applicable, defending that Third Party Claim; and
8.3.3. give the other primary control over the defence and settlement of that Third Party Claim. The indemnified party may join in the defence with counsel of its choice at its own expense.
8.4. The indemnifying party may enter into a settlement only if it: (a) involves only the payment of money damages by the indemnifying party; and (b) includes a complete release of the indemnified party. Any other settlement will be subject to the written consent of the indemnified party (not to be unreasonably withheld or delayed).
8.5. The indemnifying party will have no obligation or liability under this clause 8 in relation to any Third Party Claim arising from:
8.5.1. the indemnified party’s non-compliance with the Agreement;
8.5.2 (where Company and/or DoubleClick is the indemnifying party) infringement of any third party’s trademark, trade secret, copyright, or U.S. patent arising from the provision or use of any Customer Materials; or
8.5.3. (where Company and/or DoubleClick is the indemnifying party) the combination, operation or use by Customer or any Affiliate Customer of any Services with any product or service not provided by DoubleClick.
8.6. If any Services become, or in DoubleClick’s reasonable opinion are likely to become, the subject of an intellectual property infringement claim, Company will promptly notify Customer and, at Company’s sole option and expense, may: (a) procure the right to continue providing the Services as contemplated by the Agreement; (b) modify the Services to render them non-infringing (if modification does not adversely affect use of the Services); or (c) replace the Services with functionally equivalent, non-infringing services. If none of the foregoing options is commercially practicable, then each party will have the right to terminate each affected Order Form.
8.7. This clause 8 states the parties’ entire liability and exclusive remedy with respect to infringement of a third party’s intellectual property rights.
9. Term and Termination
9.1. This Agreement will commence on the Effective Date and will remain in effect until all Order Forms have expired or terminated, unless terminated earlier.
9.2. Each Order Form will be in effect for the term stated in that Order Form unless: (i) terminated earlier; or (ii) automatically renewed in accordance with clause 9.3.
9.3. An Order Form will automatically renew for successive terms of one (1) year or other term as stated in the Order form, unless: (i) terminated earlier; or (ii) either party gives the other written notice that it does not wish to renew at least sixty (60) days before the date on which the Order Form is due to renew.
9.4. Either party may suspend performance or terminate an Order Form, with immediate effect, if the other party is in material breach of this Agreement (which includes any breach by Customer of clauses 2.1.5 or 6.5.5 to 6.5.7) or the applicable Order Form where the breach is:
9.4.1. incapable of remedy; or
9.4.2. capable of remedy and fails to remedy the breach within thirty (30) days after receiving written notice of the breach.
9.5. Either party may suspend performance or terminate this Agreement (and all Order Forms) with immediate effect, if:
9.5.1. the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or
9.5.2. any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
9.6. Company may suspend performance or terminate this Agreement (and all Order Forms) with immediate effect if:
9.6.1. Customer is not in compliance with applicable export and re-export control laws and regulations ; or
9.6.2. Customer has violated or caused DoubleClick to violate any Anti-Bribery Laws, or that such a violation is reasonably likely to occur.
9.7. Company may suspend the provision and use of any Services on seven (7) days’ notice to Customer, if Customer fails to pay Fees invoiced by Company for those Services (other than Fees disputed in good faith) within ten (10) days following the relevant due date.
9.8. Company may (at its sole discretion) suspend the provision of any Services or modify any Services to comply with any applicable law. If any suspension under this clause 9 continues for more than thirty (30) days, Customer may, at any time until use of the applicable Services is reinstated, terminate the applicable Order Form.
9.9. Notwithstanding termination of the Agreement, any provisions of the Agreement that by their nature are intended to survive, will survive termination.
9.10. Upon termination of the Agreement, Customer will erase all Tags produced by the System and sent to Target Media by Customer. If the System continues to receive requests for Ads, by Tags, that should have been removed, as stated above, Customer must pay to Company all related fees, as if the Agreement has not been terminated.
9.11. Notwithstanding anything stated in any other section of this Agreement or Order Form regarding payment terms, upon termination of the Agreement, any payment (other than payments disputed in good faith) shall become due, and must be paid immediately to Company.
9.12. Notwithstanding anything stated in any other section of this Agreement, Company may terminate the Agreement before the term of this Agreement and any Order Form, in the event of discontinuation in the relationship, material change in business model, material change in any product, feature or resale term between Company and DoubleClick. In such event Company will not be obligated to pay any compensation to Customer.
10. Data Protection
10.1 In this clause:
10.1.2 “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.
10.2 Both parties will comply with the Data Protection Laws.
10.3 To the extent that the resale of any Services (where applicable) requires Customer to process Personal Data on Company’s and/or DoubleClick’s behalf, for the purposes of the Data Protection Laws, Company and/or DoubleClick is the controller and Customer will act as a processor and will:
10.3.1 comply with, and only act on, instructions from and on behalf of, Company regarding the processing of that Personal Data;
10.3.2 not process that Personal Data for any purposes other than to resell the Services;
10.3.3 ensure that appropriate technical and organisational measures are taken to avoid unauthorised or unlawful processing of that Personal Data and against loss or destruction of, or damage to, that Personal Data;
10.3.4 ensure the reliability of all of Personnel who have, and will have, access to that Personal Data;
10.3.5 not, by any act or omission, place DoubleClick in breach of the Data Protection Laws;
10.3.6 inform Company immediately of any suspected or confirmed data protection breaches or unauthorised or unlawful processing, loss, or destruction of, or damage to, that Personal Data;
10.3.7 without prejudice to the generality of clause 10.3, not subcontract to any third party any of Customer’s obligations to process that Personal Data;
10.3.8 not process, or cause to be processed, that Personal Data outside the European Economic Area unless Customer has: (i) Company’s prior written consent to do so; and (ii) fulfilled all of DoubleClick’s requirements to enable the processing to take place outside the European Economic Area;
10.3.9 to the extent that Customer is sending any electronic marketing
communications on behalf of Company and/or DoubleClick, ensure that the recipient has provided its consent to such communications, provide the ability to unsubscribe from such communications with each such communication, and comply with any such unsubscribe requests.
11. Parties Addresses
All notices hereunder shall be sent to the respective party’s address stated in the Agreement.
12. Governing Law
This Agreement and any dispute concerning this Agreement, its subject matter, formation or breach thereof (a “Dispute”) shall be governed by Israeli law and the jurisdiction to hear any Dispute shall reside solely with the courts of Tel-Aviv, Israel. Notwithstanding the above, in any proceeding in which a claim is filed against the Company by DoubleClick as a result of any action or omission of the Customer, the Company shall have the right, and the Customer hereby consents, to add the Customer as a defendant to any such proceeding between the Company and DoubleClick in Ireland.
Customer may not assign, pledge or transfer in any other way any of its rights or obligations under the Agreement without the prior written consent of the Company. However, the Company shall have the right to assign its rights and obligations under this Agreement to any third party upon providing the Customer with prior written notice and provided that any such transfer does not have an adverse material effect on the Customer.
14.1. Any amendment to this Agreement shall be valid only if it is set out in writing and signed by both parties. The Agreement sets out all terms agreed between the parties in relation to its subject matter and supersedes all previous agreements between the parties relating to the same.
14.2. Failure or delay in exercising any right or remedy under this Agreement shall not constitute a waiver of such (or any other) right or remedy, unless any such waiver is clearly set forth in writing and signed by both parties.
14.3. Any URL(s) refers to a website in that URL or any other relevant website which may be provided by Company and/or Google;
14.4. Unless otherwise stated in this Agreement, any communication between the parties ought to be in writing, means it also can be done by email.
14.5. Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
14.6. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.
14.7. No Agency. The Agreement does not create any agency, partnership or joint venture between the parties.
14.8. No Third Party Beneficiaries. The Agreement does not confer any benefits on any third party unless it expressly states that it does.
14.9. The parties may execute this APA and any Order Form in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
14.10. Any amendment must be in writing (which includes by click and accept) and expressly state that it is amending the Agreement.
14.11. Conflicting Terms. If there is a conflict between any term of this APA and a term of an Order Form, the term of the Order Form will govern. If in relation to a particular Service there is a conflict between Order Forms, the Order Form relating to that particular Service will govern.
14.12. Conflicting Languages. If the Agreement is translated into any other language, and there is a discrepancy between the English text and the translated text, the English text will govern.