This Affiliate Program Advertiser Agreement (“Advertiser Agreement”), shall govern the relationship between Spiral Interactive Ltd. (“Spiral” or “we”) and the Advertiser (“Advertiser”), whereby Advertiser may obtain approval to market Spiral (“Spiral Affiliate Program”).The Spiral Affiliate Program, as well as the services provided by Spiral Affiliate Program in connection therewith (“Services”), are further described in the Insertion Order (“IO”) attached hereto and incorporated herein by reference (the IO, together with this Advertiser Agreement, the “Agreement”). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to “Advertiser” shall refer jointly to Advertiser as well as the applicable underlying client.
- Spiral Affiliate Program/Services
Advertiser agrees to accept, and Spiral Affiliate Program agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Spiral Affiliate Program shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby Spiral Affiliate Program will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registration, pop-ups, pop-unders, e-mail, graphics files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, Spiral Affiliate Program Ads (as defined below) through the Spiral Affiliate Program either:
• on Advertiser websites for impressions based Ad Campaigns (“CPM”); or
• by Affiliates via e-mail based marketing, search engine marketing, website based marketing and/or other online marketing means. In connection with such Ad Campaigns, Company shall pay Advertiser commissions depending on the number of valid clicks, impressions, sales/actions (“CPA”), applications and leads (“Leads”), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject IO (collectively, “Actions”). The applicable Actions, the fees due to Advertiser for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. Spiral Affiliate Program shall not be held liable or responsible for any actions or inactions of its Affiliates.
Advertiser shall develop all aspects of the Advertiser Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that Spiral Affiliate Program prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “Spiral Affiliate Program Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that Spiral is the sole owner of any and all intellectual property rights associated with the Spiral, other than Advertiser’s trademarks, logos, copyrights. Spiral shall provide Advertiser with all Advertisement materials. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Spiral’s prior express written consent, after the applicable Ad has been approved by Spiral. Spiral reserves the right, in its sole discretion and without liability, to change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Spiral. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where Spiral deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads (“Advertiser Products”), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Spiral or any of its Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Spiral Affiliate Program shall, subject to the provisions set forth herein, comply with such request as soon as practicable but in no event later than three (3) business days after its receipt thereof.
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Spiral Affiliate Program and/or its Affiliates, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO, the Ads may appear at any point of placement and/or distribution that Spiral Affiliate Program and/or its Affiliates may determine, in their respective sole discretion.
The rates for Actions shall be set forth in the applicable IO(s).
- Leads/CPA/Unaccepted Actions
In connection with Leads and CPA-based Ad Campaigns, Spiral will pay Advertiser for all Actions generated; provided, however, that Spiral shall have no obligation to pay for any Lead/CPA-based Action that:
it rejects within five (5) days of its receipt thereof, and both
• parties determine is not a Valid Action (as defined below)
A “Valid Action” means an individual person that:
• is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
• in the case of the CPA-based Campaign, is a valid sale that is not fraudulent, canceled, charged back or otherwise nullified; and
• in the case of Leads-based Campaigns, has submitted information that meets all of Spiral’s criteria as set forth in the applicable IO. The data associated with any and all Lead/CPA-based Actions (“Action Data”) that are not both accepted and paid for by Spiral shall be deemed the Confidential Information of Spiral Affiliate Program, subject to any and all restrictions set forth herein (“Unaccepted Action Data”). Upon Spiral’s acceptance of a Lead/CPA-based Action (and payment to Spiral Affiliate Program therefore in accordance with payment terms set forth herein and in the applicable IO). Where Spiral does not accept Leads/CPA-based Actions, where Spiral fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
• will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
• will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by Spiral Affiliate Program;
• will not use the information contained in the Unaccepted Action Data to create any interactive online, CD-ROM or other derivative product;
• will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
• will notify Spiral as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to Spiral Affiliate Program in the investigation and prosecution of any such unauthorized use or disclosure.
The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon five (5) business days’ prior written notice. Upon termination or expiration of the Agreement for any reason:
• Spiral will pay Advertiser all amounts then due and owing as of the termination date within thirty (90) days;
• any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
• any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned/destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
- Warranty/Limitation of Liability
THE SPIRAL AFFILIATE PROGRAM, AD GUIDELINES, ACTIONS PROVIDED BY SPIRAL UNDER THIS AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, SPIRAL MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SPIRAL DOES NOT WARRANT OR GUARANTEE ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE SPIRAL AFFILIATE PROGRAM, SERVICES, AD GUIDELINES, ACTIONS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. SPIRAL AFFILIATE PROGRAM HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND SPIRAL AFFILIATE PROGRAM DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. SPIRAL AFFILIATE PROGRAM HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND SPIRAL AFFILIATE PROGRAM DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE SPIRAL AFFILIATE PROGRAM, SERVICES, SPIRAL AFFILIATE PROGRAM ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. SPIRAL AFFILIATE PROGRAM MAKES NO GUARANTEES AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL SPIRAL AFFILIATE PROGRAM BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF SPIRAL AFFILIATE PROGRAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SPIRAL AFFILIATE PROGRAM WILL NOT BE LIABLE OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND SPIRAL’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, SPIRAL’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID BY SPIRAL AFFILIATE PROGRAM TO ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. SPIRAL AFFILIATE PROGRAM SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF AFFILIATES.
- Representation and Warranties
Advertiser represents and warrants that:
• it has the power and authority to enter into and perform its obligations under the Agreement;
• at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the General Data Protection Regulation, Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, “Laws”);
• it owns and/or has any and all rights to permit the use of the Advertiser Ads; and
• at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
• it will not disable “back” browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
• The advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
• Advertiser shall fulfill all commitments made in the Ads;
• no Ad is targeted to end-users under the age of eighteen (18);
• the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:
• contain any misrepresentations or content that is defamatory;
• contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
• promote or support gambling or sweepstakes or contests in direct connection with the Company; or
• contain any “worm,” “virus” or other devices that could impair or injure any person or entity;
Advertiser shall irrevocably defend, indemnify and hold Spiral, its Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:
• Advertiser’s breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;
• the Ads, Advertiser Products and/or Advertiser websites; and/or
• any claim that Spiral Affiliate Program is obligated to pay any taxes in connection with Advertiser’s participation hereunder.
For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
• a party’s business plans, strategies, know-how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
• the material terms of the Agreement and/or any associated IO(s);
• with respect to Spiral Affiliate Program, the Unaccepted Action Data and suppression lists; and
• any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
• who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
• who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
• is generally available to or known to the public through no wrongful act of the receiving party;
• was independently developed by the Receiving Party without the use of Confidential Information; or
• was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
Advertiser recognizes that Spiral Affiliate Program has proprietary relationships with its Affiliates. Advertiser agrees not to circumvent Spiral Affiliate Program’s relationship with such Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Spiral Affiliate Program hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Spiral Affiliate Program, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that Spiral Affiliate Program shall be entitled to:
• injunctive relief (including temporary and preliminary relief) without the requirement to post a bond.
• liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and
• any and all other remedies available to Spiral Affiliate Program at law or in equity.
- Force Majeure
Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Program failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:
• an acquirer of all or substantially all of such party’s equity, business or assets;
• a successor in interest whether by merger, reorganization or otherwise; or
• any entity controlling or under common control with such party.
• Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of Israel. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the exclusive jurisdiction to the Tel- Aviv District, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
• Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
• Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
• Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Spiral Affiliate Program acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).
IN WITNESS WHEREOF, Spiral and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.