CodeFuel Advertising Standard Terms and Conditions (the “Standard Terms”)
The following terms and conditions (the “Standard Terms“) shall be incorporated by reference into and govern all Insertion Orders (“IO”) between Perion Network Ltd. on its own behalf and on behalf of its subsidiaries and affiliated companies d.b.a. CodeFuel (“CodeFuel“) and Advertiser. In any case of contradiction between an IO and these Standard Terms, the terms of the IO shall prevail. All defined terms in the IO shall have the meanings set forth in these Standard Terms. Please ensure that you have read these Standard Terms carefully before signing an IO with CodeFuel. By signing and submitting an IO to CodeFuel, you indicate that you have read and consent to these Standard Terms.
- Definitions“Advertiser” means an advertiser placing an IO directly with CodeFuel or the advertising agency or media buyer placing an IO with CodeFuel on behalf of an advertiser, as specified in the IO.
“Advertisement” means any and all advertising materials provided by Advertiser to CodeFuel, including all links and other content to be displayed for Advertiser on Placements, in accordance with these Standard Terms and the IO, including without limitation, any trademarks and logos therein.
“Advertising Data” means any performance, user engagement, behavioral or user profiling data derived in connection with the Advertisements.
“CodeFuel Network” means CodeFuel and third party websites, applications, products and/or services (web, mobile or otherwise).
“Fees” means the amount payable by Advertiser to CodeFuel calculated according to the payment model specified in the IO.
“CodeFuel Affiliates” means any entity that, either directly or indirectly, controls or is controlled by or is under common control with CodeFuel. For purposes of this definition, an entity shall be deemed to control another entity if it owns or controls, directly or indirectly, at least fifty percent (50%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation).
“Landing Page” means a website URL(s) to which an Advertisement is linked.
“Placement” means websites, applications, products or services on or through which Advertisements will be displayed, as set forth in the IO.
“User” means any user of CodeFuel website properties or technologies.
- Campaign Communication
Advertiser acknowledges that all requests and instructions in relation to a campaign must be sent in writing to CodeFuel to the CodeFuel email set forth in the IO.
For the purposes of these Standard Terms, Advertiser grants to CodeFuel a royalty-free, transferrable, sub-licensable right to: (a) use, display, reproduce, distribute, publish, modify, adapt, translate and transmit the Advertisements for the purpose of placing the Advertisements on the Placement set forth in the IO; (b) link to the Landing Page(s) from the Advertisements; (c) collect and use the Advertising Data for its own purposes including, without limitation, research, development and optimization of its own services, and/or providing services to any other third party. Advertiser further grants CodeFuel the right to use the Advertisements and related data in CodeFuel marketing materials.
Reports will be provided by each of the parties as described in the applicable IO.
- Advertiser shall pay CodeFuel the Fees described in the applicable IO and on the payment terms specified therein.
- Advertiser is fully responsible for the payments, regardless of its relations with other advertisers. Payments will be made by electronic funds transfer, pursuant to CodeFuel’s instructions. All related bank charges/transfer fees, and any applicable taxes (including VAT), other fees, duties, governmental charges, and any other expenses related to an IO shall be solely borne by Advertiser.
- Advertiser Representations and Warranties
- Advertiser represents and warrants that: (a) it has the full corporate right, power, and authority to enter into the Standard Terms and to perform the acts required of it hereunder; (b) the execution of the Standard Terms by it, and the performance of its obligations and duties hereunder, do not and will not breach any agreement to which it is a party or by which it is otherwise bound; (c) it possesses all consents, licenses, and other rights necessary to: (i) advertise, market, promote, and offer the products and/or services displayed on the Advertisements and/or available through the Landing Page(s); and (ii) grant CodeFuel the licenses in Section 3 of these Standard Terms; and (d) it complies with all applicable laws and regulations including, without limitation, data and privacy laws.
- Advertiser represents and warrants that it is and shall be in compliance with the CodeFuel Standard Guidelines for Advertising Placement, which are available at:/legal/standardguidelinesforadsplacement.
- Advertiser further represents and warrants that all Advertisements, Landing Pages, and any content, products, or services offered, distributed, marketed, or made available thereto, and any data processing in connection therewith: (a) do not disparage CodeFuel or CodeFuel Affiliates; (b) do not state or imply that CodeFuel or CodeFuel Affiliates endorse such products; and (c) are not harmful to, do not compete with, and are not in conflict with CodeFuel’s business interests or CodeFuel’s products and services, including but not limited to home page takeover, and/or search takeover on PC, Mac, or mobile devices. Advertiser understands that breach of Section 6.3(c) will cause irreparable harm to CodeFuel which may include, but shall not be limited to, the loss of CodeFuel users and other assets.
- Advertisement Suspension/Removal
Advertiser acknowledges that CodeFuel may, but has no responsibility or obligation to, monitor or review Advertisements. CodeFuel reserves the right within its sole discretion to reject, discontinue, or demand the removal of any Advertisement at any time. In the event that CodeFuel wishes to discontinue a certain Advertisement, then Advertiser agrees to remove such Advertisement on its own immediately upon CodeFuel’s request. CodeFuel may also take steps necessary to remove the Advertisement without any liability to Advertiser.
- Advertiser Service
Advertiser shall be solely responsible for all Advertiser service issues, including, without limitation, order processing, billing, fulfillment, returns, charge backs, and any other Advertiser support issues associated with the Landing Page(s), their owners and operators, and/or any other products or services available through the Landing Page(s).
- Disclaimer; Limitation of Liability
ANY SERVICES PROVIDED BY CODEFUEL HEREUNDER ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. CODEFUEL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE CODEFUEL NETWORK OR ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREON (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY CONTENT). CODEFUEL EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS AND IMPLIED, INCLUDING ANY AND ALL REPRESENTATIONS AND WARRANTIES OF TITLE AND NON-INFRINGEMENT, AND ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY FOR A PARTICULAR PURPOSE, AND ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO ANY SERVICES PROVIDERED BY CODEFUEL HEREUNDER OR THE CODEFUEL NETWORK. CODEFUEL DOES NOT REPRESENT OR WARRANT THAT THE CODEFUEL NETWORK IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR FREE OF ERRORS, VIRUSES OR INTERRUPTIONS. YOU EXPRESSLY AGREE THAT YOUR USE OF ANY CODEFUEL SERVICES AND THE CODEFUEL NETWORK IS ENTIRELY AT YOUR SOLE RISK. IN NO EVENT SHALL CODEFUEL OR ITS AGENTS, OFFICERS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN RELATION TO THESE STANDARD TERMS, EVEN IF CODEFUEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, CODEFUEL’S ENTIRE LIABILITY UNDER ANY PROVISION OF THESE STANDARD TERMS OR ANY RESPONSIBILITY OR LIABILITY CREATED BY THE LAWS OF YOUR STATE/JURISDICTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO CODEFUEL IN THE PREVIOUS SIX (6) MONTHS, IN CONNECTION WITH THE IO TO WHICH THE LIABILITY RELATES.
Advertiser shall indemnify and hold CodeFuel, the CodeFuel Affiliates, and their respective affiliates, officers, directors, agents, and employees harmless against any and all expenses and losses of any kind (including reasonable attorney’s fees and costs) incurred by them in connection with any claim of any kind in relation to: (a) any Advertisement or Landing Page including any content, products, or services offered, distributed, marketed, or made available thereto, including, without limitation, any claim of trade mark or copyright infringement, libel, defamation, breach of confidentiality, or false or deceptive advertising or sales practices; or (b) any breach of any Advertiser obligation, representation and warranty hereunder or under the IO. Advertiser will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on CodeFuel without CodeFuel’s prior written consent.
- Confidentiality and Press Releases
- Each party may have access to certain non-public proprietary, confidential and/or trade secret information of the other party, whether furnished before or after the date of any IO, and regardless of the manner in which it is furnished, (the “Confidential Information”). Confidential Information shall also include the existence and terms of an IO and these Standard Terms, and also any information which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential or competitively sensitive to the disclosing party. For the purpose of any IO and these Standard Terms, Advertising Data is the Confidential Information of and proprietary to CodeFuel. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its shareholders, directors, officers, corporate affiliates, employees, advisors or consultants (collectively, the “Representatives”) on a “need to know” basis; provided, however, that such Representatives are bound by an agreement with terms at least as restrictive as those terms contained herein and the receiving party remains responsible for a breach of the disclosing party’s Confidential Information by a Representative; (b) not to use any of the disclosing party’s Confidential Information for any purpose except to carry out its rights and responsibilities under an IO or these Standard Terms; (c) to keep the disclosing party’s Confidential Information confidential using the same degree of care it uses to protect its own confidential information, which shall not, in any event, be less than a reasonable degree of care. Notwithstanding the foregoing, CodeFuel may disclose Advertiser’s Confidential Information solely to current and potential media sellers of the CodeFuel Network to for placement of Advertiser’s Advertisements.
- For purposes of an IO and these Standard Terms, Confidential Information shall not include any information that: (a) is, or subsequently becomes, publicly available without receiving party’s breach of any obligation owed to disclosing party; (b) became known to receiving party from a source other than disclosing party by means other than by a breach of an obligation of confidentiality owed to disclosing party; (c) was already known to the receiving party prior receipt of the Confidential Information from the disclosing party; or (d) is independently developed by receiving party without the use of any of disclosing party’s Confidential Information. If a particular portion or aspect of the Confidential Information becomes subject to any of the foregoing exceptions, all other portions or aspects of such information shall remain subject to all of the provisions of these Standard Terms.
- Neither party shall be liable for disclosure of Confidential Information if made pursuant to applicable law or in response to a valid order of a court or authorized agency of government; provided that the receiving party provides the disclosing party with prompt written notice so that such party may seek relief from the body who demanded the disclosure or initiate any other steps to limit or avoid disclosure. In the event that relief is not obtained, receiving party will disclose only that portion of the disclosing party’s Confidential Information that its counsel advises is legally required to be disclosed and will work with disclosing party to minimize the extent and effects of such disclosure, all at the disclosing party’s expense.
- Upon termination or expiration of an IO or upon the written request of the disclosing party at any time during the term of an IO, receiving party shall promptly either: (i) return to the disclosing party all Confidential Information furnished to the receiving party by the disclosing party, without retaining any copies thereof, or (ii) destroy all Confidential Information furnished to the receiving party by the disclosing party, including soft copies and any writings or recordings whatsoever prepared by the receiving party or its Representatives based upon the disclosing party’s Confidential Information, and receiving party will furnish to disclosing party a certificate signed by an authorized officer of receiving party supervising such destruction and attesting under penalty of perjury that all Confidential Information has been permanently destroyed or permanently deleted, except to the extent a party is advised by counsel that such destruction is prohibited by law. Notwithstanding the foregoing, neither the receiving party nor any of its Representatives shall be obligated to return or destroy Confidential Information that has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures and made in the ordinary course of business; provided further that any such Confidential Information shall remain subject to the confidentiality provisions contained herein for so long as it is retained by the receiving party, irrespective of the term of an IO.
- The duty to protect Confidential Information shall expire five (5) years from the date of termination or expiration of an IO.
- Advertiser further undertakes that as Perion Networks Ltd. (“Perion”) is a publicly traded company, Advertiser will not, at any time, issue any press release and/or any public announcement relating to CodeFuel and/or CodeFuel Affiliates, these Standard Terms (including the details of any IO) and/or the fact that the parties have engaged under an IO, without the prior written approval of CodeFuel. Advertiser further acknowledges and agrees that CodeFuel and/or CodeFuel Affiliates may be obliged, as part of certain disclosure rules, to disclose the existence of an engagement under an IO and its terms and conditions, including these Standard Terms. Advertiser hereby waives any claim of any sort against CodeFuel and/or CodeFuel Affiliate for any such disclosure.
- Advertiser shall not send unsolicited instant messages, commercial emails or other online communications (e.g., “spam”) to any end user, and shall comply with all of CodeFuel’s policies in effect from time to time.
- Advertiser shall ensure that its collection, use, and disclosure of information obtained from Users complies with all applicable laws, regulations, and privacy policies.
- Advertiser shall not disclose User information to any third party, nor shall Advertiser use or allow any other party to use such User information in any manner that is or could reasonably be expected to be used by or on behalf of any product or service competitive with CodeFuel.
Either party may terminate these Standard Terms and any IO, with or without cause, with a prior written notice as set forth in the IO. For the removal of doubt, termination of these Standard Terms and/or any IO due to Advertiser’s breach of any requirement of these Standard Terms and any IO, shall not derogate from Advertiser’s payment obligations hereunder. Termination of these Standard Terms by CodeFuel shall not derogate from CodeFuel’s rights under these Standard Terms, or any applicable law, to obtain any remedy for a breach by Advertiser of any of its obligations under these Standard Terms and any IO.
- Changes to Agreement
CodeFuel may modify these Standard Terms from time to time. You will be notified of any material changes to the Standard Terms through a posting on the CodeFuel website (www.codefuel.com) or via email. All changes shall be effective immediately upon posting or notification to you. The most recent version of this Agreement can always be found at /legal/online-ads-standard-terms-conditions. You agree to review these Standard Terms from time to time. If you do not agree to any or all of the changes, you must immediately notify us via email at:
- Sections 8, 9, 10, 11, 12, 13, and 15 of these Standard Terms shall survive the expiry or termination of these Standard Terms. Any termination of these Standard Terms shall be without prejudice to any rights and payment obligations accrued in favor of either party prior to or upon the date of such termination.
- Neither party shall be liable for, or be considered in breach of these Standard Terms on account of any delay or failure to perform as required by these Standard Terms (excluding payment obligations) as a result of any causes or conditions which are beyond such party’s reasonable control, including but not limited to acts of God, acts of government, strikes, or war, and which such party is unable to overcome by the exercise of reasonable diligence.
- The IO together with these Standard Terms sets forth the entire agreement between Advertiser and CodeFuel with respect to the transactions set forth herein, and supersedes any and all prior agreements of CodeFuel and Advertiser with respect to such transactions. If an agency enters into these Standard Terms on behalf of an Advertiser, the agency thereby represents and warrants that it has full authority to bind Advertiser to the terms of the Agreement and IO and that it will ensure that Advertiser complies with all such terms.
- Advertiser shall not make any assignment of the IO, the Standard Terms or any rights, benefits, or obligations hereunder (including, without limitation, by way of merger or consolidation) without the prior written consent of CodeFuel. In the event of an assignment, these Standard Terms shall be fully binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective successors and assigns. CodeFuel may assign or delegate any interest or obligation under an IO or under these Standard Terms without the prior written consent of Advertiser.
- The relationships of the parties to the Standard Terms shall be solely that of independent contractors, and nothing contained in these Standard Terms shall be construed otherwise. Nothing in these Standard Terms or in the business or dealings between the parties shall be construed to create a joint venture or partnership.
- Advertiser acknowledges that it is aware, and it will advise its employees and consultants, that the United States and Israeli securities laws prohibit any person who has received material, non-public information concerning certain matters which are the subject of any IO or these Standard Terms from purchasing or selling securities of Perion or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Advertiser is aware of Perion’s Code of Business and agrees that the Advertiser, its employees and consultants will act in accordance therewith at all times during the term of any IO.The laws of the State of New York and applicable U.S. federal laws, excluding any conflict of law rules, shall govern any IO and these Standard Terms. The parties specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Each party irrevocably submits to the sole and exclusive jurisdiction of the courts of New York State located in New York, New York and the Federal Courts of the Southern District of New York. Each of the parties consents to the jurisdiction and venue of any such court and waives any argument that any such court does not have jurisdiction over such party or such dispute or that venue in any such forum is not appropriate or convenient.
- The parties specifically exclude from application to this IO the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
- All rights not expressly granted by either party hereunder are reserved.
Published: April 01, 2015.