Terms And Conditions

PUBLISHERS TERMS & CONDITIONS

The following terms and conditions shall govern the placement and delivery of advertising as set forth in any insertion orders or service agreements ("IO") executed by and between BoostAff ("BoostAff") and Publisher.

1. Services. BoostAff will enable the provision of commercial advertisement ads on Publisher's Site(s) (as defined below) through the use of the BoostAff platform, as well as manage and deliver all such advertisements in the form requested by Publisher and in accordance with any specifications and policies set-forth by Publisher prior to publication (the "Services"). Publisher may implement the Services only on such approved Publisher properties as set forth in a given IO (the "Site(s)").

2. Consideration. (i) In return for the Services, BoostAff shall retain a percentage of the Net Revenues (as defined below) derived from the Services, as set forth in the IO. "Net Revenue" means the revenue actually received from advertisers in relation to Qualified Transactions as part of the Services, less any taxes that BoostAff is required to pay or collect in relation to the supply of Services, any credit card processing fees, bad debt and charge-backs, commissions or discounts allowed or paid to advertising agencies, refunds to advertisers and third party partners and other payments to third parties if applicable. A "Qualified Transaction" means a transaction that occurs when a bona fide Internet user views or fulfills some kind of actions (as agreed between the parties) in relation to the ad that appears in one of the Sites; it is hereby clarified that transaction due to illegal traffic, bot traffic or wrongly delivery of non-agreed inventory shall not be considered Qualified Transactions. (ii) BoostAff will pay Publisher in accordance with its revenue statement 45 days from receiving qualified invoice. Domestic Publishers in local Currency will be billed in accordance with the current rate published by the Bank of Israel in the last day of the applicable month. Publisher acknowledges and agrees that BoostAff may, at its sole discretion, discount, credit back or accrue a credit against revenue shares already provided to the Publisher for transactions which were deemed to be non-Qualified Transactions following payment. (iii) All payments due are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including without limitation VAT) (collectively, "Taxes"). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder. To the extent that Inventory is determined by BoostAff to be a result of non-Qualified Transactions, then, in addition to any other remedy available to BoostAff, Publisher agrees that Invalid Impressions shall not be payable by BoostAff. Any and all payments previously made by BoostAff to Publisher on account of Publisher Sites which are subsequently deemed to include non-Qualified Transactions shall be promptly refunded to BoostAff. BoostAff shall have the right to off-set any amounts owed to it pursuant to this paragraph against any amounts owing to Publisher under this Agreement.

3. Reporting. Calculation of all payments made hereunder to Publisher will be made based solely on BoostAff's reporting system and statistics. BoostAff will provide Publisher with access to its reporting interface that will enable Publisher to view an estimate of any amounts owed to it under this IO.

4. Representations and Warranties. Publisher represents and warrants that (a) all of the information provided by Publisher to BoostAff is correct and current; and (b) Publisher is the owner of each Site or that Publisher is legally authorized to act on behalf of the owner of such Site(s) for the purposes of this IO; (c) Publisher has all necessary right, power and authority to enter into this IO and to perform the acts required of Publisher hereunder; and (d) the Site(s) will have a clearly labeled and easily accessible privacy policy that provides Users with clear and comprehensive information about cookies, device-specific information, location information and other information stored on, accessed on, or collected from Users' devices, including information about users' options for cookie management. Publisher further represents and warrants that the Site(s) and any material displayed therein: (i) complies with all applicable laws, statutes, ordinances and regulations and do not contain or promote links to another website that contains defamatory, abusive, violent, sexually explicit or illegal content; (ii) does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; (iii) does not include content (1) that is pornographic, illegal, racist, libelous, defamatory, contrary to public policy or otherwise unlawful, (2) that contains hate speech, "spam", malicious code, adware, spyware or drive-by download applications, (3) that contains viruses or similar programs that might harm data or computer systems, (4) promoting pornography, the use of illegal substances, illegal activity, racism, hate, "spam", mail fraud, pyramid schemes or investment opportunities or advice not permitted by law, or (5) is otherwise inappropriate or unlawful; (iv) do not and will not interact with End Users' browsers in any manner including without limitation by the installation or offering of any toolbars or toolbar applications, advertising texts, coupons, intext, ad injections, search enhancement and data exchange modules or price comparison applications; and (v) do not and will not engage in any fraudulent activity, including without limitation any of the following: (1) fictitious downloads or installations; (2) automated and/or fraudulent clicks; (3) malware; or (4) violating any applicable law prohibiting "spam" or other electronic messages;. UNLESS SPECIFICALLY SET FORTH HEERIN, SAPTICA MAKES NO WARRANTY, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. BoostAff makes no guarantee regarding the level of impressions of, actions or views on any ad, the timing of delivery of such impressions, actions and/or views, and the relevancy of the commercial ads shown under this IO. For the avoidance of doubt, BoostAff makes no guarantee that any commercial ads will appear on any page of the Site(s), and consequently there is no guarantee that this IO will generate any revenue for the Publisher.

5. Confidentiality. Both parties agree to keep this IO and all of its terms, numbers and information, confidential. Each party agrees to keep all and any non-public information which is given by the other party confidential, unless otherwise approved by the originating party. It is hereby agreed by the Publisher that BoostAff may disclose the terms of this IO to third party payment processors on its behalf and to its advisors as necessary.

6. Term, Termination and Renewal. The term of the IO will commence on the Start Date and shall remain in force for twelve (12) months, following which it shall renew for additional twelve-month terms unless terminated at least sixty (60) days' prior to the applicable term. BoostAff may terminate any IO at any time and for any reason, upon 48-hours' notice; Upon termination of the IO: (i) all undisputed payments that have accrued prior to expiration or termination will be payable in full within the agreed payment terms; and (ii) BoostAff's obligations relating to the Services will terminate.

7. Publicity. Publisher agrees that BoostAff may use Publisher's name and logo in presentations, marketing materials, customer lists, financial reports and website listings of customers.

8. Indemnification. Publisher agrees to indemnify and hold harmless BoostAff and its directors, officers, employees, agents and authorized representatives from and against any costs, losses, liabilities and expenses (including court costs and reasonable attorneys' fees) that BoostAff may suffer, incur or be subjected to by reason of any legal action, arbitration or other claim by a third party arising out of or as a result of a breach of Publisher's representations, warranties and agreements made hereunder.

9. NO WARRANTY; LIMITATION OF LIABILITY. THE SERVICES ARE MADE AVAILABLE TO PUBLISHER ON AN "AS IS" BASIS AND WITHOUT ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESSED OR IMPLIED, OF ANY KIND INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. ALTHOUGH BOOSTAFF WILL MAKE REASONABLE COMMERCIAL EFFORTS TO ENSURE THAT THE RELEVANT ADS ARE SERVED TO END USERS VISITING PUBLISHER'S SITES, PUBLISHER UNDERSTANDS AND AGREES THAT SUCH PROCESS IS BEING AFFECTED BY AUTOMATED MEANS, AND BOOSTAFF IS NOT RESPONSIBLE FOR, NOR DOES IT GIVE ANY WARRANTY OR REPRESENTATION AS TO THE OUTCOME OF SUCH PROCESS. BOOSTAFF DOES WARRANT OR GUARANTEE THAT THE SERVICE OR THE OPERATION THEREOF WILL BE UNINTERRUPTED OR WILL MEET PUBLISHER'S NEEDS. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES AND ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BOOSTAFF'S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER WILL EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID UNDER THIS AGREEMENT TO PUBLISHER DURING THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. BOOSTAFF is not responsible for any web sites that can be linked to from the ads or for the results of any act or omission of any Advertiser or any other BOOSTAFF provider.

10. Miscellaneous.This Agreement will be governed and construed in accordance with the laws of the State of Israel without giving effect to conflict of laws principles. Any dispute or claim arising out of or in connection with an IO or these terms shall be adjudicated in Tel-Aviv-Jaffe. Neither party may assign or transfer its rights under this Agreement without the prior written consent of the other party; provided that such consent is not required in the case of merger, acquisition or sale of all, or substantially all, of the assigning party's assets, stock or business. The parties hereto are independent contractors and this Agreement does not create an agency, joint venture or partnership. Any notice permitted or required by this Agreement will be in writing and transmitted by e-mail to the receiving party at the address provided. Any such notice will be deemed to have been received on the same business day if sent by during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond the reasonable control of the non-performing party. This Agreement, including all applicable Attachments and addendums hereto, constitutes the entire agreement between Tremor Video and Publisher concerning the Services and related Confidential Information. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement may only be amended by a written document executed by both parties.

ADVERTISERS TERMS & CONDITIONS

The following terms and conditions shall govern the placement and delivery of advertising as set forth in any insertion orders or service agreements ("IO") executed by and between Advertiser and BoostAff.

1. Advertiser will create and deliver all content required for any ad to BoostAff in the form requested by BoostAff and in accordance with any specifications and policies set-forth by BoostAff prior to publication.

2. Advertising Policy. BoostAff will not be required to publish any ad that is not in accordance with its policies, restrictions (as set forth in the IO) or specifications as determined in its sole discretion. Notwithstanding the foregoing, BoostAff's policies, specifications and/or recommendations with respect to ads should not be construed as legal advice, or as sufficient guidelines to ensure that such ads comply with applicable law, and Advertiser shall be solely responsible for the content of its ads. BoostAff assumes no obligation and hereby disclaims any liability for Advertiser's use or placements of any ads.

3. Advertiser Representations. Advertiser warrants and represents that: (a) it has all right, title and interest in and to the ads that it places; (b) the use of the ads by BoostAff and its affiliates as contemplated and authorized hereunder will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (c) all ads will comply with all applicable laws, regulations and specifications provided by BoostAff; (d) all ads do not include any content (i) that is pornographic, illegal, racist, libelous, defamatory, contrary to public policy or otherwise unlawful, (ii) that contains hate speech, "spam", malicious code, adware, spyware or drive-by download applications, (iii) that contains viruses or similar programs that might harm data or computer systems, (iv) promoting pornography, the use of illegal substances, illegal activity, racism, hate, "spam", mail fraud, pyramid schemes or investment opportunities or advice not permitted by law, or (v) is otherwise inappropriate or unlawful (hereinafter: "Prohibited Content"); and (e) all of the information provided by Advertiser to BoostAff is correct, complete and current.Advertiser further represents and warrants that any website linked to Advertiser's ads (i) complies with all laws and regulations in any state or country where the ad is displayed; (ii) does not breach and will not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) is not contain Prohibited Content.

4. Distribution of Ads. Positioning of the ads is at the sole discretion of BoostAff and its affiliates. BoostAff does not guarantee that Advertiser's ads will be available through any specific part of the networks upon which BoostAff places the ads, when the ads will run and/or the placement and positioning of the Advertiser's ads. BoostAff reserves the right to approve, omit, edit or reject any of Advertiser's ads for any reason at any time, including the right to make minor changes to the ads in order to optimize campaign results, with or without notice to the Advertiser. In addition, BoostAff reserves the right, at any time to remove any of Advertiser's ads if BoostAff determines, in its sole discretion that the ad or any portion thereof, violates any of BoostAff's policies or may result in liability to BoostAff. In addition, BoostAff shall have the absolute right to reject any URL link embedded within any ad. BoostAff's failure to reject, cancel, approve, omit, edit or modify shall not be construed as an acceptance of an ad, nor shall it negate other provisions of the IO or these terms and conditions, specifically with respect to liability. Publisher or its affiliates may reject or remove any ad for any or no reason.

5. No Guarantee.To the fullest extent permitted by law, BoostAff disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) costs per click; (ii) click through rates; (iii) availability and delivery of any impressions; (iv) clicks; (v) conversions or other results for any ads; and (vi) the adjacency or placement of ads within the advertising networks used by Publisher.

6. Advertiser will make payments to BoostAff in accordance with the payment terms in each IO. Fees will be paid by Advertiser to BoostAff within thirty (30) days after the end of each calendar month for such calendar month. Payments are due based on Advertiser's ads placed by BoostAff regardless of whether Advertiser has collected payment from its clients. The failure by Advertiser to make timely payment shall constitute a material breach. In addition, a charge-back shall also constitute a material breach. Advertiser will be responsible for all reasonable expenses (including, but not limited to, attorneys' fees and costs) incurred by Publisher in collecting such amounts due plus interest at the rate of eighteen percent (18%) per annum or the maximum amount permitted by law, whichever is less.

7. Both parties agree to keep this agreement and all of its terms, numbers and information, confidential. BoostAff agrees to keep all and any information which is given by Advertiser confidential, including but not limited to information about keywords, costs, conversions, and any other statistics, that are not publicly available, unless otherwise approved by Advertiser.

8. For the term of the IO, Advertiser hereby grants to BoostAff and BoostAff's affiliates and partners a non-exclusive, royalty-free, worldwide license to: (a) use, perform and display all ads delivered hereunder in accordance with these terms; and (b) use all associated Advertiser intellectual property in connection therewith. Title to and ownership of all intellectual property rights of the ads and associated Advertiser intellectual property shall remain with Advertiser or its third party licensors. In addition, Advertiser agrees that BoostAff may include Advertiser's name (including any trade name, trademark, service mark and logo) and any ad provided hereunder on BoostAff's advertiser list and in its marketing materials and sales presentations. BoostAff is the sole owner of any and all intellectual property rights associated with the services, other than Advertiser's trademarks, logos, and other pre-existing Advertiser intellectual property displayed via BoostAff's services.

9. NO WARRANTY.BOOSTAFF'S SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, BOOSTAFF'S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE.

10. Limitation of Liability.THE CUMULATIVE LIABILITY OF BOOSTAFF FOR ALL CLAIMS RELATING TO THE IO, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY ADVERTISER UNDER THE IO DURING THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

11. Advertiser agrees to defend, indemnify and hold harmless BoostAff and its affiliates and their respective principals, directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) incurred as a result of any claim, judgment or proceeding relating to or arising out of: (a) Advertiser's breach of the IO and these terms; (b) the content of the ads and any and all claims made therein; or (c) the products, services or content linked to from the ads.

12. The IO and these terms will be governed and construed in accordance with the laws of the State of Israel without giving effect to conflict of laws principles. Any dispute or claim arising out of or in connection with an IO or these terms shall be adjudicated in Tel-Aviv-Jaffe. Neither party may assign or transfer its rights under this Agreement without the prior written consent of the other party; provided that such consent is not required in the case of merger, acquisition or sale of all, or substantially all, of the assigning party's assets, stock or business. The parties hereto are independent contractors and this Agreement does not create an agency, joint venture or partnership. Any notice permitted or required by this Agreement will be in writing and transmitted by e-mail to the receiving party at the address provided. Any such notice will be deemed to have been received on the same business day if sent by during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond the reasonable control of the non-performing party. This Agreement, including all applicable Attachments and addendums hereto, constitutes the entire agreement between Tremor Video and Publisher concerning the Services and related Confidential Information. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement may only be amended by a written document executed by both parties.