MONETIZATION TERMS AND CONDITIONS
These Monetization Terms and Conditions (“Terms”) are entered on the Effective Date (as defined in the Publisher Insertion Order) (“IO”) by and between Shinez I.O. Ltd., a company duly registered and incorporated under the laws of the state of Israel (“Shinez”), the Publisher detailed in the IO (the “Publisher”).
WHEREAS, Publisher is the owner of the Websites and Shinez is the owner and operator of the Platform and the Content Units (as defined below); and WHEREAS, Publisher wishes to use the Platform for increasing End User’s engagement and monetizing web traffic of the Website/s; NOW THEREFORE, in consideration of the mutual rights and obligations set forth herein, the Parties hereby agree to the terms set forth in this Agreement;
1.DEFINITIONS; in addition to any term defined under the IO, the following terms shall have their respective definition:
1.1.“Content” means any image, text, links, graphics, animations, video, URLs, GIF’s, codes, features and functionalities provided by a Party to the other or to End Users or otherwise available through a Party’s Platform or Website, as the case may be. Content may include sponsored material, including ads, links, offers and recommendations.
1.2.“End User” means a human viewer, visitor or user of the Websites.
1.3.“Fraudulent Traffic” means any web traffic which is, based upon or otherwise hosting, redirecting, linking, involving or facilitating any of the following: (a) Prohibited Material; (b) virus, malware, trap doors, back doors, Easter eggs, worms, time bombs, unwanted program, Trojan horses, spyware or adware or any other malware or malicious code intended to create or exploit security vulnerability in the End User device, system or otherwise has the potential to damage, interfere with, intercept or expropriate any system data or personal information; (c) any form of downloadable traffic which does not directly engage with the Inventory; (d) hacking or pricking; (e) as otherwise determined by Shinez at it sole discretion.
1.4.“Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark 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.
1.5.“Content Unit” means Shinez’s proprietary units produced by Shinez and its advertising partners through Shinez’s Platform and embedded by Publisher within the Websites.
1.6.“Monetized Unit” means any Content Unit that is sponsored or includes sponsored content, with the potential to generate revenues, excluding any Content Unit which is placed on top or integrated into a Website or web traffic which are accessioned with Fraudulent Activity or Prohibited Material.
1.7.“Platform” means Shinez’s proprietary platform for creating, embedding and sharing Content Units on the Websites and monetizing web traffic.
1.8.“Prohibited Material” means any material or content, contained in or linked from the Websites or Content created by Publisher that involves, facilitates, advocates or promotes one or more of the following: (a) false, misleading, deceptive, discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (b) libelous, defamatory, obscene, nudity, pornographic, adult content, sexually explicit or abusive activities; (c) illegal gambling; (d) illegal activities; (e) MP3, MPEG and/or copyrighted materials for download, sale or otherwise, in any case without the permission of the copyright owner or otherwise in violation of law;
(f) a conflict or violation of any law or Intellectual property or other rights of any person or entity.
1.9.“Website/s” shall have its meaning under the IO, and includes any Content available therein.
2.RIGHTS AND LICENSES; Subject to the terms and conditions of this agreement, Shinez hereby grants Publisher a non-exclusive, non-assignable, non-transferrable, non-sub-licensable, world-wide, royalty free right and license, during the Term to use the Platform solely for the purposes of embedding within Publisher’s Websites, engaging End Users with the Websites and Content, and monetizing its web traffic (the “License”). Any right that is not explicitly provided herein, is reserved by Shinez and its advertising partners.
3.INTELLECTUAL PROPERTY AND OWNERSHIP; As between the parties, Shinez shall have all right, title and interest in
the Platform and Content delivered by Shinez, and all software that provides the Platform, and all features, templates and content made available by Shinez to Publisher through the Platform or Content. As between the parties, Publisher owns all rights in its Websites and any content made available through Websites, and any content provided by Publisher to be made available to End Users through the Platform, excluding such Content that was provided by Shinez through the Platform or otherwise.
4.RESTRICTIONS; Except as set forth expressly herein, Publisher shall not, and shall not permit any third party, to (a) interfere with the Content provided as part of the Content units or materially modify the Content Units or the Shinez JS; (b) reverse engineer, decompile or attempt to find the underlying code of, the Platform, Content or the Shinez JS; (c) use the Platform or Content or the Shinez JS to store or transmit any viruses, worms, time bombs, Trojan horses, or any other harmful or malicious code, files, scripts, agents or programs; (d) sublicense, distribute, or provide any third party with access to the Platform, Content or the Shinez JS; or (e) use the Platform, Content or the Shinez JS in any manner not permitted under the terms of these Terms; (f) Publisher will not in any way be concerned, directly or indirectly, in generating Fraudulent Traffic. Publisher is solely responsible for ensuring that any use of the Platform and Content by Publisher is in compliance with any applicable law and does not violate any third-party rights.
6.CONSIDERATIONS; Shinez will render payments to Publisher according to the rates and conditions agreed upon and stipulated in the IO, out of of Shinez’s Net Revenue. “Net Revenue” shall mean those amounts that were generated and actually received by Shinez as a direct result of Monetized Units implemented in the Websites and viewed and/or interacted by End Users, excluding any VAT/taxes, agency or third-party commissions/fees/charges, media spent, refunds, charge backs.
7.OBLIGATIONS; REPRESENTATIONS AND WARRANTIES; Each Party represents and warrants to the other Party that:
(a)it has the full corporate right, power and authority to enter into this Agreement and to perform the acts and obligations required of it under this Agreement, (b) the execution of this Agreement and the performance thereof do not violate any other agreement to which it is a party or by which it is bound, (c) this Agreement constitutes the legal, valid and binding obligation of such party, and (d) any and all activities and obligations it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules, regulation and industry standards.
7.2. Subject to any other terms and conditions agreed in the IO, Publisher will provide Shinez at least 10 business days, prior notification of any material changes to any Website that would change the target audience or
significantly affect the size or placement of any Monetized Unit. Should such a modification occur, Shinez may cancel the remainder of the IO without penalty or liability.
8.DISCLAIMERS; LIMITATION OF LIABILITY; the Platform, Monetized Units or any Content therein, and any services provided by Shinez (collectively, “Shinez’s Deliverables”) are provided on an “as is” and “as available” basis with no warranty. To the maximum extent permitted by applicable law, Shinez disclaims all representations and warranties of any kind, express or implied, with respect to the Shinez’s Deliverables, including but not limited to implied warranties of merchantability and fitness for a particular purpose and non-infringement. In no event shall Shinez or any of its employees, officers, directors, agents, affiliates (collectively, the “Shinez’s Representatives”) be liable for any damages of any kind whatsoever occasioned with or suffered by Publisher, arising out of or related to the use, inability to use, misuse or unauthorized use of the Platform and the Shinez’s Deliverables, including but not limited to special, direct, indirect, incidental, punitive and consequential damages, even if Shinez has been advised of the possibility of such damages. Publisher shall indemnify, defend and hold Shinez and Shinez Representatives harmless from and against any and all claims, liabilities, costs and expenses (including reasonable attorneys’ fees) resulting or related to: (a) the Websites; (b) improper use of the Platform or the Shinez’s Deliverables; or (c) breach or violation of this Agreement or any IO. The total liability of Shinez toward Publisher under this Agreement or any IO shall be limited to the total amount of Shinez’s Net Revenue as a result of Monetized Units during the 6 months preceding to such loss or damage first arose.
9.CONFIDENTIALITY; Except as necessary for the fulfillment of the rights and obligations under this agreement, none of Shinez, Publisher, or anyone on their behalf shall make any public announcement regarding the existence or content of this agreement (except to advisors, lawyers, accountants, finance advisors or any other service provider that may need to know about the terms of the foregoing). Notwithstanding anything to the contrary above, announcements including information which has entered into public domain by no breach of the announcing party may be carried out freely and without limitations. The parties undertake that during the term of this agreement and for a period of 3 years from the date of expiration or termination they will not, either directly or indirectly use, communicate, divulge or discuss with any person, firm or company any non-public information each of them received from the other party (the “Confidential Information“). Confidential Information includes, but is not limited to the Shinez Deliverables, integration and delivery methods, advertisers list, technology, clients, corporate and business plans, financial details and projections, media policies, advertising and marketing plans, advertising charges, but excludes information that (i) was already in the other party’s possession without need to keep it under
confidentiality; (ii) is or becomes part of the public domain for causes not related to the other party, or (iii) is legally disclosed by a 3rd party who is not under confidentiality obligations, (iv) is independently developed by the other party.
10.TERMINATION; Unless otherwise agreed in the applicable IO, this agreement shall be effective as of the Effective Date and for a period of one year (“Initial Term”). Following the Initial Term, this agreement shall be automatically renewed for successive 2 periods of one year each (each, the “Additional Term”), unless a Party notifies the other of non-renewal at least 90 days prior the end of each of the Initial Term or Additional Term. Shinez reserves the right, in its sole and absolute discretion, to terminate a campaign and remove any Monetized Unit at any time for any reason, including upon a demand-partner’s requirement or in case of Publisher’s violation of this agreement or any related policy. Upon termination, Publisher will remove all Shinez’s Deliverables from Website/s
11.MISCELLANEOUS; (a) The Parties acknowledge and agree that they are operating and doing business as independent contractors. Neither this agreement nor any IO may be construed as creating or constituting neither a partnership, joint venture nor any other association relationship. (b) If any provision herein is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions or components of this agreement. (c) Shinez may assign this agreement and any IO to any affiliate or business successor. Publisher may not assign this agreement or any IO without the prior written consent of Shinez.
(d) This agreement and all IOs shall be construed and governed by the law of Israel. Publisher expressly consents to the exclusive venue and personal jurisdiction of the courts of Tel Aviv-Jaffa, Israel. (e) This agreement contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants.