Date: December 2012
This Framework Advertising Agreement (“Agreement”) is dated December, 2012, and is made between Marmar Media Ltd., a company registered under the laws of the State of Israel, with registered number 51-454639-9, of Leshem 26, Mevasseret Zion, 90805, Israel (“Marmar Media”), and Advertiser (“Advertiser”).
A. Marmar Media provides online advertising services by way of the planning of advertising campaigns and the purchase of online media space from websites or advertising networks or channels on behalf of clients (such activities “the Services”).
B. Advertiser desires to obtain the Services, upon the terms set out herein.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows:
Section 1. Appointment.
Advertiser hereby engages Marmar Media to provide the Services, and Marmar Media agrees to provide such Services, upon the terms and conditions set out herein.
Section 2. Insertion Orders.
2.1 Marmar Media shall provide such Services as shall be ordered by Advertiser from time to time as set out in sections 2.2 and 2.3 below, subject to the confirmation of acceptance of such order by Marmar Media, which shall be at its sole discretion, and subject to prepayment as set out in section 5 below and the provision by Advertiser of Advertising Materials as set out in section 6 below. ”Advertising Materials” means the materials which are to be the subject of Services, whether in the form of text, graphics, logos, designs, trademarks or otherwise, including but not limited to buttons, banners, text-links, landing pages, pop-ups, and pop-unders.
2.2 The Services to be provided and the terms of such provision shall on each occasion be as set out in an Insertion Order (“IO”) as shall be agreed upon and confirmed by the parties, in the format set out in Schedule 1 hereto, or in such other format as shall be agreed upon by the parties.
2.3 IOs may be submitted by Advertiser, and confirmation of acceptance thereof may be indicated by Marmar Media, via post, fax or e-mail.
2.4 For the avoidance of doubt, no requirement to provide Services shall arise prior to such confirmation of acceptance of an IO by Marmar Media.
2.5 In the event of any conflict between a confirmed IO and this Agreement, the provisions of such IO shall prevail.
Section 3. Adjustments.
The parties may make adjustments to IOs, which adjustments shall become effective when signed or confirmed as accepted by both parties (which may be via any of the methods set out in section 2.3 above, mutatis mutandis).
Section 4. Cancellation without Cause.
Advertiser may, in its sole discretion, cancel an IO, without cause, by giving notice (via any of the methods set out in section 2.3 above, mutatis mutandis), to Marmar Media of no fewer than 72 hours. Upon receipt of such notice, Marmar Media shall have no further obligations in respect of such IO, and Advertiser shall pay Marmar Media only for Services provided through the end of such 72 hour notice period. Any refund due to Advertiser as a consequence of such cancellation shall be made within 30 days of the end of such notice period.
Section 5. Invoicing and Payment.
5.1 The IO shall (unless agreed otherwise by the parties and set out in the IO) specify an amount (plus VAT if applicable) up to the value of which (as calculated pursuant hereunder) Services are to be provided (“the Prepayment Amount”). Such Prepayment Amount shall be paid by Advertiser prior to the commencement of the Services to the account details of which shall be set out in the IO, and such commencement shall be conditional on such payment. Marmar Media will provide Advertiser with an appropriate invoice as soon as possible following the first day of the contract period set forth in the IO, but payment by Advertiser of the Prepayment Amount shall not be contingent upon Advertiser’s receipt of such invoice.
5.2 The value of the Services shall be calculated according to one of the following methods, as will be specified in the IO (“Calculations”):
a) Cost Per Thousand Impressions (CPM). Marmar Media shall be entitled to a rate as specified in the IO per thousand recorded counts of impressions served (whether to a unique or non-unique user).
b) Cost Per Action (CPA, CPI, CPL or CPD). Marmar Media shall be entitled to a rate as specified in the IO for the completion of each of the types of action (such as the completion of a lead form, a product purchase, a download or an install) specified in the IO.
c) Cost Per Click (CPC). Marmar Media shall be entitled to a rate as specified in the IO for each click on an advertisement delivered hereunder.
5.3 For the purpose of the Calculation of the number of impressions, actions or clicks as described in 5.2a) to c) above, Advertiser shall insert tracking pixels on the confirmation page for each advertisement to be delivered hereunder, and will provide Marmar Media with a link to such page to enable Marmar Media to view the pixel for its approval prior to initiating any Services.
5.4 Save as agreed otherwise by the parties and set out in the IO, the Calculation of the number of impressions, actions or clicks, as appropriate, shall be determined solely according to the higher of i) data collected by Marmar Media, which it shall submit to Advertiser, and ii) data collected by Advertiser. Unless Advertiser shall object to any Calculations within forty-eight (48) hours of its receipt thereof, such Calculations shall be deemed agreed. To the extent Advertiser intends to dispute any Calculations, Advertiser shall provide a written report to Marmar Media, within such period, supported by appropriate documentary evidence and identifying, in detail, the discrepancies between the Calculations and Advertiser’s data in respect thereof. Marmar Media may take such report into account, but shall have final authority in determining the correct Calculations.
5.5 For traffic and tracking purposes, Greenwich Mean Time (GMT) shall be used to determine time.
5.6 Non-Viable Leads. Unless otherwise provided in the IO, no offsets or chargebacks may be taken, nor any other reduction applied, for any non-viable or duplicate leads, all of which shall count towards any relevant calculation. It will be the responsibility of the Advertiser to ensure that the IO accurately reflects the leads sought.
5.7 All payments to be made to Marmar Media hereunder or pursuant to any IO shall be made free and clear of, and without any deduction for or on account of, any set-off, withholding, counterclaim or tax.
Section 6. Advertising Materials.
6.1. Delivery of Advertising Materials. Advertiser will provide to Marmar Media all Advertising Materials which Advertiser wishes to be the subject of Services hereunder.
6.2 Compliance with Policies. Advertiser shall be responsible for ensuring the compliance of all Advertising Materials with Marmar Media’s then-current policies and specifications in respect thereof, as advised by Marmar Media from time to time. If and to the extent the delivered Advertising Materials do not so conform, Advertiser shall be responsible for providing Marmar Media with appropriately conforming materials. Without derogating from the generality of the foregoing, Marmar Media reserves the absolute right to refuse in its sole discretion to accept Advertising Materials which:
• infringe the rights of others (including but not limited to copyright and other intellectual property rights) or which promote copyright piracy (such as unauthorized MP3s, roms, ‘warez’, emulators, cracks);
• contain pornography, adult content, sexual or erotic material;
• include gratuitous displays of violence, obscene or vulgar language, and/or abusive content or content which endorses or threatens physical harm;
• promote any type of hate-mongering (such as racial, political, ethnic, religious, gender-based, sexuality-based or personal);
• promotes any type of illegal substance or activity;
• contains any content violating privacy laws, including but not limited to the Protection of Privacy Law, 1981 and the US Children’s Online Privacy Protection Act.
6.3 It is acknowledged by Advertiser that Marmar Media may, at its sole discretion, for the purpose of the provision of the Services, produce or design its own creative materials (including but not limited to banners, text and landing pages) (such materials “Marmar Materials”). All right, title and interest in any Marmar Materials shall vest solely in Marmar Media.
6.4. Licence and Alterations. Advertiser hereby grants to Marmar Media, for the purpose of performance of the Services, a non-exclusive, royalty-free, worldwide licence to use, reproduce, distribute, modify, create derivative works of and publicly display the Advertising Materials and any part thereof, including but not limited to trademarks, service marks, logos, other commercial product or service designations or other intellectual property, whether or not registered contained therein or forming part thereof (collectively “Advertiser’s IP”). Advertiser acknowledges that Marmar Media may carry out any such activities in its sole discretion for the purpose of performance of the Services, and that Marmar Media shall not be required to obtain Advertiser’s approval therefor. Advertiser also grants to Marmar Media the right to use any and all Advertiser’s IP for the purposes of Marmar Media’s own marketing and promotional activities, including but not limited to by inclusion in content directories or indices, and in electronic or printed advertising, publicity, press releases, newsletters and/or mailings regarding any aspects of Marmar Media, its products or services. Marmar Media may make a reasonable number of archival or back-up copies of the Advertising Materials. Without derogating from Advertiser’s title to the Advertiser’s IP, all right, title and interest in any modifications, derivations or alterations thereof made by Marmar Media shall vest solely in Marmar Media.
Section 7. Limitation of Liability.
7.1 In the event that Marmar Media shall have undertaken in an IO to deliver a particular number of deliverables within a specified time period and shall fail to do so, the sole liability of Marmar Media to Advertiser arising therefrom shall be limited to the obligation, at Marmar Media’s discretion, either to (a) continue to deliver the advertisement in question until it garners the stated number of page views (b) credit the undelivered page views to a future advertising run, or (c) refund the amount paid by Advertiser on a pro rated basis with respect to the undelivered page views.
7.2 In the absence of any specific undertaking from Marmar Media in an IO to deliver a particular quantity of any item or deliverable, Marmar Media shall have no obligation in respect thereof, including but not limited to with regard to page views, impressions, traffic or clicks. It is further acknowledged that beyond its obligations to provide Services as set out in an IO, Marmar Media provides no undertaking as to the success or consequences thereof or effect on the business of Advertiser.
7.3 In no event will Marmar Media be liable for any special, indirect, incidental or consequential damages, whether such damages are alleged in tort, contract or indemnity or for loss of profits, interrupted communications, lost business or lost data arising out of or in connection with this Agreement or the Services, even if Marmar Media has been advised of (or knows or should know of) the possibility of such damages.
7.4 Without derogating from the foregoing, under no circumstances shall MarMar Media be liable to pay damages to Advertiser in an amount which is greater than the amount paid hereunder by Advertiser to MarMar Media for Services in any respect of any calendar year of this Agreement.
Section 8. Representations, Covenants and Warranties.
8.1 Advertiser represents and warrants to Marmar Media that:
• Neither the Advertising Materials, nor any website or landing page to which such Advertising Materials shall link will (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any applicable law, statute, ordinance, rule, standard or regulations, including without limitation the laws and regulations governing export control; (c) be or contain material which is defamatory or libellous; (d) be or contain material which is lewd, pornographic or obscene; (e) violate any laws regarding unfair competition, antidiscrimination or false advertising; (f) promote violence or hate speech; (g) contain viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines;, or (h) violate any US Federal Trade Commission regulations or guidelines.
• It has full legal power and authority under its organisational documents (1) to enter into this Agreement; (2) to provide all Advertising Materials which it provides or will provide pursuant hereunder, (3) to grant to Marmar Media the rights, permissions and licences granted herein, without reservation or restriction; and (4) to perform its obligations contained herein;
• The execution, delivery and performance by Advertiser of this Agreement has been duly authorised by all necessary action on the part of Advertiser; and
• The execution of this Agreement and the performance of its obligations by Advertiser will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which Advertiser is a party or subject.
8.2 Advertiser further represents and covenants that it will comply with all laws and regulations that may apply, and it will conduct its business in compliance with all applicable laws, rules and regulations.
Section 9. Indemnification.
9.1 Without prejudice to the representations, covenants and warranties set out in section 8 above, Advertiser agrees to defend, indemnify and hold harmless Marmar Media and its directors, officers, agents, employees and affiliates (each an “Indemnified Party”) for and against any and all losses, costs, liabilities, claims, damages or expenses sustained or incurred by any of the Indemnified Parties relating to, arising, in connection with or as a result of, directly or indirectly, any of the following:
a) any breach of any covenant made by Advertiser under this Agreement;
b) any breach of or failure of a representation or warranty made by Advertiser;
c) the Advertising Materials or any portion thereof or the use thereof or any portion thereof by Marmar Media or any other party;
d) Advertiser’s website or the sale, license or provision of any of Advertiser’s goods or services; or
e) any other act, omission or misrepresentation by Advertiser.
With respect to any claim brought against an Indemnified Party the defence of which is assumed by Advertiser pursuant to this section, Marmar Media shall be entitled, at its option, to participate in such defence, at its expense.
9.2 Advertiser also agrees to indemnify Marmar Media for any reasonable legal fees incurred by Marmar Media in enforcing its rights under this Agreement. The amount required to be paid by Advertiser pursuant to any indemnity claim brought by an Indemnified Party shall include an amount in respect of all costs and expenses incurred by such Indemnified Party in relation to the bringing of the claim, and any amount necessary to ensure that, after any taxation of the payment, Marmar Media (or relevant Indemnified Person) is left with the same amount it would have had if the payment was not subject to taxation.
9.3 Advertiser also agrees to indemnify Marmar Media in respect of any Israeli VAT liability for which Marmar Media may be assessed regarding the Services. Advertiser shall pay to Marmar Media an amount equal to such liability (including any interest and/or linkage differentials and/or fines) within 7 days from the first date of receipt of a demand therefor from Marmar Media
Section 10. Term and Termination.
10.1. Term. Subject to the early termination rights of either party herein, the term of this Agreement shall be 1 year from the date first written above; and it shall renew automatically for subsequent one-year periods unless either party notifies the other at least 30 days before the end of the then-Term that it does not wish to renew the Agreement.
10.2. Termination without Cause. Notwithstanding section 10.1 above, either party may terminate this Agreement at any time without cause, upon 30 days written notice to the other party, such notice to be served in accordance with section 11.5 below.
10.3. Termination with Cause. Either party shall have the right to terminate this Agreement or any IO at any time, on 7 days’ written notice, due to the other party’s material breach of any of the provisions hereof or thereof, where such breach is not cured during such period to the satisfaction of the notifying party.
10.4. Consequences of Termination. Notwithstanding the termination of this Agreement or any IO issued hereunder, each party shall be liable to the other for any amounts due under any IO up to the date of the termination. The provisions of this section 10.4 and of sections 7, 8 and 9 and 11 shall survive the termination of this Agreement or any IO issued hereunder. Upon termination of this Agreement or any IO issued hereunder Marmar Media shall procure the removal of the Advertising Materials from the sites or locations where they shall have been placed and return them (if applicable) to Advertiser with reasonable promptness.
Section 11. General.
11.1. Governing Law and Jurisdiction. The laws of the State of Israel shall govern this Agreement and all IOs, without regard for the conflict of law principles thereof. The appropriate courts located in Tel Aviv, Israel shall have sole and exclusive jurisdiction to hear any disputes or controversies arising from or related to this Agreement, or arising from or related to any previous agreements or relations between the parties, save that Marmar Media shall be entitled to bring suit against Advertiser in any jurisdiction in which Advertiser shall do business or have assets.
11.2. No Prior Agreements. This Agreement, together with all fully executed IOs, contains every obligation and understanding between the parties regarding the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, if any, regarding the subject matter hereof. The terms of this Agreement shall furthermore govern all previous agreements, arrangements or understandings between the parties regarding any subject matter, and shall supersede and replace any previously agreed terms thereof, with the exception of ongoing or outstanding financial or commercial obligations which are hereby preserved.
11.3. Severability, Rights Cumulative. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
11.4. Force Majeure. Marmar Media shall not be held to be in breach of this Agreement by reason of any failure or delay in its performance hereunder if such failure is due to causes beyond its reasonable control, including but not limited to, acts of the other party, act of God, delays in transportation, inability beyond its reasonable control to obtain necessary labour or materials, or events such as fires, floods, earthquakes, storms, war, act of public enemy, civil commotion and the like or by any law, rule, regulation, order or other action by any public authority. In the event of any interruption in the display or distribution of the Advertising Materials, Marmar Media’s sole obligation shall be to restore this as soon as reasonably possible.
11.5 Notices. Save as specifically provided in section 2.3 above, any notice or other communication required to be given by one party to the other under this Agreement shall be in writing and shall be deemed to have been served: (i) if personally delivered, when actually delivered; (ii) if sent by facsimile, the next business day after receipt of confirmation of transmission; or (iii) 10 (ten) days after being mailed by registered mail, postage prepaid (for the purposes of proving such service—it being sufficient to prove that such notice was properly addressed and posted) to the respective addresses of the parties set out above, or to such other address or addresses as either of the parties may from time to time in writing designate to the other party hereto pursuant to this clause 11.
11.6 Counterparts and Methods of Signature. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument. Delivery of a signed copy of this Agreement or any IO hereunder by facsimile or scanned image shall have the same effect as the delivery of an original.
11.7 This Agreement may not be amended or modified in any manner except by an instrument in writing signed by each of the parties.
Advertiser declares that it is only incorporated and/or registered outside Israel, and that it does not have any permanent establishment or other type of business or activity in the state of Israel.
Advertiser further declares that:
(a) it is the only consumer of the Services provided hereunder (namely that the Services are not, to the best of its knowledge, also rendered to any Israeli resident, or to any non-Israeli resident while such non-Israeli resident is present in Israel or having any business or activity in Israel); and
(b) the Services are not related to any asset (including a right) located in the State of Israel.