Terms of Marketing Agreement – Playtika Ltd.
Capitalized terms used but not otherwise defined in these Terms of Marketing Agreement are defined in the Insertion Order, attached hereto and incorporated herein by reference (these Terms of Agreement together with the Insertion Order collectively, the "Agreement"). In addition to any other terms defined herein, for purposes of this Agreement, the following terms shall have the meaning ascribed to them below:
a. "Action" means any action linked to an Ad, including without limitation a registration to the Application, form submission, offer response, impressions, view of a video Ad, click on an Ad, purchase of coins, installation or downloading of the Application.
b. "Ad" means material that (i) promotes a brand, product or service, and (ii) is provided by Playtika to Publisher for display on or in connection with the Applications, and shall include without limitation ad banners, badges, buttons, links and other interactive or promotional features.
c. "Application" means any application, widget, game, and owned and/or operated by Playtika.
d. "Confidential Information" means (i) the Ads and creative assets of Playtika, prior to publication; (ii) the terms and conditions of this Agreement; (iii) any statistics or other data relating to the Application; and (iv) any information provided by one party to the other party that is identified as confidential or can reasonably be regarded as confidential.
e. "CPA" means cost per action and refers to the amount paid by Playtika for each specific Action that will be defined by Playtika. In target CPA campaigns Publisher shall not divert from the agreed target, any deviation of more than 10% of the agreed target, shall not be paid by Playtika.
f. "CPC" means cost per click and refers to the amount paid by Playtika for each click on an Ad.
g. “CPCV” means cost per completed view and refers to the amount paid by Playtika for each completed view of a video Ad.
h. “CPE” means cost per engagement and refers to the amount paid by Playtika for each specific ‘engagement’, as shall be defined by Playtika. For example, ‘engagement’ shall mean purchase of in-app virtual goods, such as virtual coins. In this case, if any chargebacks or refunds are made by a User, Playtika shall not pay Publisher for such engagement.
i. “CPI” means cost per install and refers to the amount paid by Playtika for each install of the Application followed by registration to the Application and playing the game in the Application. If any of the above actions is not made by a User, Playtika shall not pay to Publisher for such install. In target CPI campaigns Publisher shall not divert from the agreed target, any deviation of more than 10% of the agreed target, shall not be paid by Playtika.
j. “CPM” means cost per mille and refers to the amount paid by Playtika for one thousand (1,000) impressions of an Ad. It is agreed that the Publisher shall guarantee the number of impressions set forth in the Insertion Order or otherwise agreed by the parties.
k. "End Date" means the date set forth in the Insertion Order.
l. "Personally Identifiable Information" shall mean any data or other information that can be used to identify, contact or locate a natural person, including but not limited to a natural person’s name, address, telephone number, e-mail address or social security number.
m. "Start Date" means the date set forth in the Insertion Order.
n. "Tag" means any HTML code known as an action tag, web beacon, pixel or cookie provided to Publisher by Playtika for use in delivering Ads hereunder.
o. "Users" means Internet or mobile or wireless device users who made a session in an Application.
p. “User’s Data” means any and all information and data regarding Playtika’s Users which may be generated and available as a result of the Agreement or any campaign hereunder, including without limitation, UDIDs (unique device identifiers), MAC addresses, OpenUDIDs, Android IDs, AIS and secure UDIDs, IP addresses (and all related location data collected from an IP address), email addresses, physical addresses, names, gender, age, demographic data, GPS data, behavioural data, device data (e.g., OS version, type of device), inventory, and other application usage, viewership, monetary and engagement data, any conversion, tracking, targeting, installations and technical related information regarding actions of Users on the Application(s).
q. "$" shall mean United States currency.
2. Scope of Services
a. Publisher Access to the Ads. Pursuant to the terms and conditions contained in this Agreement, Playtika agrees to provide Publisher all the required Ad materials.
b. Publisher Access to Reporting Information. Playtika will provide Publisher, upon Publisher’s request, with summary report of number of completed Actions performed by Users (including without limitation, such as clicks, and installations information which is required to calculate payments to Publisher in accordance with the Insertion Order) and other activity as Playtika may determine from time to time. If any additional information and parameters are requested by Publisher from Playtika’s reporting system, Publisher shall notify Playtika accordingly, and shall not request such information directly from Playtika’s reporting system. The provision of any such additional information shall be subject to Playtika’s prior written consent, which consent shall be within Playtika sole and absolute discretion. The Publisher acknowledges that the reports are estimated and may be updated prior to actual payment to Publisher. This report shall be deemed accurate and acceptable by Publisher and shall prevail over any other report in case of discrepancy. In case of possible discrepancy, it will be mutually resolved. The final payment paid to Publisher will be based on the report and shall be conclusive.
c. Services. Playtika reserves the right to improve, modify, remove, suspend, or discontinue, temporarily or permanently, in whole or in part, the Ads or any data, information, content, software, technology, or features appearing on and/or offered through the Application at its sole discretion at any time. In the event that Publisher breaches any of its obligations set forth in Section 3 of these Terms of Agreement or any of its representations and warranties in this Agreement, Playtika may suspend or cancel all or any part of the services provided to Publisher under this Agreement.
3. Publisher Obligations and Materials
a. As of the approved Start Date as indicated in the Insertion Order, Publisher shall commence advertising Ads in accordance with the terms of this Agreement and any placement requirements and reasonable technical specifications provided by Playtika to Publisher in writing in the Insertion Order or in the correspondence between the parties. Publisher may receive access to Playtika’s FTP servers for obtaining Playtka’s Ad material and creative assets. Publisher shall not allow access to Playtika’s servers and shall not use Playtika’s Ad material and creative assets for any other purpose other than as set forth herein, without Playtika’s prior written consent. Publisher shall not modify the display, order, look and feel, or other attributes of the Ads. Creation of new Ads by Publisher and/or any change made by the Publisher in the Ads provided by us must be approved by Playtika, in advance, and in writing prior to launching of the campaign, and any such changes and creative shall be the sole property of Playtika and all rights, title and interest, including all intellectual property rights therein will remain with Playtika. Without limiting the generality of the foregoing, Publisher shall use the Tags provided by Playtika to deliver all Ads hereunder. In addition, Publisher shall be responsible and shall bear the costs related to the proper display of the Ads on its app(s) and/or website(s) according to Playtika’s display instructions, including but not limited to any costs required for the implementation of such display instructions (if any).
b. Publisher shall cooperate with Playtika in good faith, on an ongoing basis, to display Ads.
c. Publisher understands and agrees that if Ads are not correctly display and/or display in competitive sites or disturbing sites by Publisher as contemplated herein, Publisher shall be responsible for any such errors.
d. Publisher agrees that any content displayed on or in connection with the Applications by Publisher (if any) shall not be false, deceptive, misleading, obscene, libelous, defamatory, illegal, violent, bigoted, hate-oriented or unethical, and shall not contain any viruses, trojan horses, worms, time bombs, cancel bots or other computer code or programming routines that are intended to damage, disable, interfere with, permit unauthorized access to, surreptitiously intercept or expropriate any system, data, software or personal information.
f. Publisher undertakes to provide Playtika with written daily reports, detailing the accurate spend data of each campaign on a daily basis and breakdown of daily spend per platform, or shall make such information available to Playtika by providing Playtika access to Publisher’s dashboard or via AppsFlyer link. Delivery of such reports and information or provision of access to such information by Publisher shall be condition to payment to Publisher.
g. Publisher may not re-broker traffic and/or subcontract its services and obligations hereunder to any third party without the prior written consent of Playtika.
h. Publisher shall not, and shall not authorize or encourage any third party to:
i. edit, modify, filter, re-order, or change the order of the content or information contained in any Ad or Tag, or remove, obscure or minimize any Ad in any way;
ii. redirect a User away from any Playtika's Application, provide a version of the Playtika's Application that is different from the Application a User would access by going directly to the Playtika's Application, intersperse any content between the Ad and the Playtika's Application, or otherwise provide anything other than a direct link from an Ad to a Playtika's Application;
iii. directly or indirectly access, launch, and/or activate Ads through or from, or otherwise incorporate the Ads in, any software application, Application, or other means other than on or in connection with the Applications, and then only to the extent expressly permitted by this Agreement;
iv. run “robots”, “crawl,” “spiders,” index or in any non-transitory manner store or cache information obtained from any Ads or Actions, or any part, copy, or derivative thereto;
v. use any means to artificially increase the number of views, engagements, installs, impressions or clicks available including, but not limited to, encouraging Users to click on Ads with offers of cash, prizes or anything else of value in exchange for services;
vi. send spam or unsolicited emails, notifications, invites or use any other broadcasting mechanism mentioning or promoting an Ad. Publisher acknowledges that any violation or attempted violation of any of the foregoing is a material breach of this Agreement;
vii. breach of any applicable terms, guidelines, agreements and/or any policies of the advertising platforms of Facebook, Apple, Google Android and Amazon Android with respect to Publisher’s performance under this Agreement, all with respect to both mobile and internet;
viii. directly or indirectly mislead or falsely encourage Users to complete Actions, using incentives which were not priory approved by Playtika or mislead to think the Application is a different kind of game or Application other than what it is, e.g., that the Application offers redemption or cash out for “real world” money, goods, or any other item of monetary value from Playtika;
ix. advertise or link the Application to any apps, websites or content containing any copyright infringements, firearm, drugs, alcohol, tobacco, pornography, gambling, hate speech or any other content which Playtika reasonably deems objectionable or promote illegal goods, services or activities or link to any of the foregoing;
x. transfer any of Playtika's Confidential information to any third party, including without limitation, Playtika’s competitors, except to the extent disclosure of Confidential Information is permitted under this Agreement.
xi. use Playtika’s name or logo for marketing, promotional or any other purposes of Publisher without Playtika’s prior written consent.
xii. collect, use, disclose, share, analyze or store any of the User’s Data for any purpose, other than for the performance of its obligations under the Agreement and only during the term of this Agreement.
xiii. exceed the budget set forth in each Insertion Order without the prior written authorization of Playtika. Any unauthorized deviation from the agreed budget shall not be paid by Playtika. The budget shall be paced evenly during the campaign period set forth in each Insertion Order.
xiv. market, publish or advertise the Application in apps or websites designated to minors, and should reach a demographic base where the majority is expected to be over the age of 21. All creative materials used by the Publisher for advertising the Applications shall not contain any themes that have primary appeal to those under 21, or use any actors in the ads under the age of 25.
Publisher shall be responsible to comply with all the above mentioned restrictions and any breach shall be deemed material breach of this Agreement which shall result in termination of the Agreement, non-payment to the Publisher and for any such breach including, but not limited to, reimbursement of Playtika of any damages caused to Playtika resulting directly or indirectly therefrom and any other remedy by law which Playtika may exercise upon its sole discretion.
4. Proprietary Rights
a. Subject to the terms and conditions of this Agreement, Playtika hereby grants Publisher a limited, personal, non-exclusive, revocable, non-sublicensable, non-transferable, non-perpetual license during the term of this Agreement to display Ads on or in connection with the Applications. Publisher will not copy (except for any copying inherent in, or required to conduct, the permitted display activities hereunder which limited copying is included in the license to display hereunder), modify, create derivative works of, distribute, or otherwise provide or re-syndicate the Ads.
b. As between Playtika and Publisher, Playtika, its licensors, as applicable, own and retain all rights, title, and interest in and to the Application and the Ads. Publisher acknowledges Playtika’s position that the Application is copyrighted by Playtika and a trade secret of Playtika. Except as expressly stated herein, Playtika does not grant to Publisher any license, express or implied, to the Application or any other right, title, or interest to any intellectual property. Any rights not expressly granted herein are deemed withheld. Publisher agrees not to copy, alter, modify, or create derivative works of the Ads in any way that violates the terms and conditions of this Agreement.
a. In consideration for providing its services and performing all its other obligations under the Agreement (including without limitation, in case of pre-paid or fixed price campaigns, completion of all agreed terms and conditions by Publisher, subject to Playtika’s full satisfaction), Playtika shall pay the Publisher the agreed consideration detailed in the Insertion Order. The Publisher shall provide Playtika an invoice showing the amounts owed to Publisher based on the applicable payment terms in the Insertion Order and the applicable data for such month. Each invoice shall include the applicable name of application and/or Playtika’s studio, the name of applicable platform and breakdown of entire activity per platform in such month. In the event that Publisher provides its services to number of studios of Playtika, Publisher shall deliver separate invoice to each studio for its applicable activity. Publisher shall deliver the invoice to Publisher’s direct account manager in Playtika and to Playtika’s financial contact person, pursuant to the email addresses detailed in the Insertion Order, on the first week of each month for the amounts due for the previous month. Playtika shall pay Publisher the payments within thirty (30) business days following the end of every calendar month. Playtika shall not be responsible for any delays in payments caused by non-receipt of invoice by Playtika, incorrect banking information or other information supplied by Publisher. Delay in delivery of invoice will cause delay in payment of such invoice by Playtika. If any of Publisher’s invoices are not received by Playtika within six (6) months as of the end of every calendar month, Playtika will no longer have any obligation to honor those invoices and Playtika will be released and discharged from any liability in connection therewith, unless Publisher can show that failure to submit an invoice timely was due to an isolated billing error.
b. Leads, sales, campaign costs and Actions shall be counted via Playtika’s reporting system. In the event of discrepancy of more than 10% between Playtika’s reporting system and Playtika’s database, such Actions will be counted and based on Playtika’s database. Notwithstanding anything else to the contrary set forth in this Agreement, Playtika shall have no obligation to pay Publisher any payments with respect to (i) amounts generated based on Publisher’s breach of this Agreement, (ii) amounts generated based on Publisher’s breach of any terms, guidelines, agreements and/or any policies of the advertising platforms of Facebook, Apple, Goggle Android and Amazon Android, all with respect to both mobile and internet, (iii) any duplicate postbacks originated from any technical errors in Publisher and/or any third party’s database, (iv) any fraudulent payments from Users or any fraudulent or invalid Actions or any fraudulent or invalid clicks or impressions on any Ads generated by any person, either, bot, automated program or similar device in connection with any Ads provided by Playtika, as reasonably determined by Playtika, including, without limitation, any Actions, clicks or impressions (A) originating from Publisher’s IP addresses or computers under Publisher’s control, (B) solicited by payment of money, the exchange of goods or services, false representation, or request or incentive for Users to click on Ads, or any illegal or otherwise invalid request for Users to complete Actions, (C) pursuant to which Users were directly or indirectly mislead or falsely encouraged to complete Actions, including without limitation making it seem that a User is completing an Action other than the Action actually being offered or requesting chargeback or refund immediately following performance of an in-app purchase, (D) pursuant to which a User provided false or misleading personal data or Facebook account, (E) pursuant to unqualified traffic which was purchased from a third party by the Publisher.
c. Playtika may withhold a relevant portion of any Payment from Publisher to offset any portion of any Payment previously received by Publisher in respect of any matter under Section 5(b) above. Publisher understands that this may reduce the Payment owed to Publisher.
d. Publisher understands and agrees that Playtika may offset from any Payment any amount owed by Publisher, or any parent, subsidiary, or affiliate of Publisher, to Playtika or any parent or subsidiary company of Playtika.
e. Payments under this Agreement shall be made in U.S. Dollars.
f. All payments due to Publisher under the Agreement are exclusive of taxes and other governmental charges including but not limited to VAT (if applicable) that Playtika is required to pay, collect or withhold (the “Taxes”). Publisher shall be responsible for payment of all Taxes and any related interest and penalties (if any) resulting from payments made hereunder to Publisher (excluding Taxes based on Playtika’s income) and Playtika shall be entitled to withhold such amounts if required under applicable law.
6. Compliance with Laws
Both parties shall comply with all applicable local, state, national and international laws, rules and regulations relating to their performance of this Agreement, including without limitation with respect to Publisher any laws regarding the transmission of technical data exported from Publisher's country of residence and any relevant data protection or privacy laws.
7. Term & Termination
a. This Agreement commences on the Start Date and continues until the End Date, or, if no such Start Date and End Date are specified on the Insertion Order, this Agreement shall commence on the date of execution of the Insertion Order and continue for a period of one (1) month thereafter (the “Term”), unless terminated earlier pursuant to the terms hereof or unless either party provides the other with written notice of cancellation which must be received by the other party at least twenty-four (24) hours prior to the end of the Term (and this Agreement and any applicable campaign shall terminate twenty-four hours after the delivery of any such notice of cancellation, regardless if the other party has responded to the termination notice). It is hereby clarified that Playtika shall not be obligated to pay for any installs made following the termination notice, even if the reporting system continues to count such new installs.
b. Termination for Breach. If either party is in material breach of any provision of this Agreement and such breach is not cured within one (1) hour after written notice is given to the breaching party, or, with respect to those breaches that cannot reasonably be cured, the non-breaching party may, by giving written notice thereof to the breaching party, terminate this Agreement immediately upon notice to the breaching party.
c. Other Termination. Either party may suspend performance of and/or terminate this Agreement if the other party becomes insolvent, bankrupt, enters into liquidation, whether voluntary or involuntary, or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency.
d. Effect of Termination. The terms and conditions of Sections 1, 4(b), 5(b), 5(c), 5(d), 7(d), and 8 through 13 of these Terms of Agreement shall survive any termination or expiration of this Agreement.
Neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. Each party shall maintain the confidentiality of the Confidential Information of the other party and shall take precautions to prevent the unauthorized disclosure or use of the Confidential Information of the other party, except to its employees with a need to know such information for the purposes of the performance of any campaign hereunder, and provided that they are bound by similar confidentiality undertakings and Publisher shall inform them of their obligations under this Agreement with respect to the Confidential Information. The obligations of this clause shall not apply to: (a) any information required to be disclosed pursuant to an order of a court of competent jurisdiction or by applicable law or regulation, provided however: that (i) such disclosure is made only to the extent and solely to the recipient legally required; and (ii) the receiving party provides the disclosing party with adequate prior written notice of such legal requirement and with the opportunity to oppose the disclosure or obtain a protective order, (b) to information that is now or subsequently becomes generally available through no act of omission of the receiving party, (c) to information that is known to the receiving party at the time of disclosure without obligation to maintain its confidentiality, as evidenced by written documents or records, (d) to information provided to the receiving party by a third party without restriction as to its use or disclosure, or (e) to information independently developed by the receiving party, its officers, employees, agents, or contractors, as evidenced by written documents or records. Publisher agrees and acknowledges that Playtika Confidential Information includes, but is not limited to, User’s Data, marketing and sale strategy, plans and methods, prices, pricing methods, payments, Insertion Order details, performance data, User’s Action, information regarding any campaign and information gathered as a result of the campaign, any and all reports provided to Playtika, and reports provided by Playtika or any third party on its behalf. Publisher’s obligations of confidentiality under the Agreement shall not expire and shall survive the termination of the Agreement or of any campaign hereunder. Notwithstanding anything to the contrary herein, Playtika may use, analyze, store, transfer, disclose and share with third parties and parties under common control User’s Data it receives, collects, infers, derives or obtains from Publisher for purposes of calculating conversions, targeting, repurposing, redirecting, analyzing, creating profiles, and other internal business purposes of Playtika.
9. Representations and Warranties
b. Playtika hereby represents and warrants to Publisher that to the best of its knowledge that: (i) the Ads and other materials or information provided by Playtika to Publisher hereunder (A) are not false, deceptive, obscene, defamatory, pornographic or violent (B) do not contain any viruses, malware, Trojan horses, worms or similar harmful items, and (C) do not violate any applicable terms, guidelines, agreements or policies of applicable advertising platforms, of Facebook, Google Android or Playtika’s own privacy policies; and (ii) Playtika shall make best efforts to obtain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations.
c. Each of Publisher and Playtika hereby represents and warrants to the other that: (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement, and (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which it is bound.
d. Without derogating from the above, Publishers that run their app or website on/through Facebook Platform (the “Facebook Publishers”) hereby represent and warrants that they strictly comply and shall strictly comply with all applicable Facebook rules, polices, programs and guidelines for developers, as may be amended by Facebook from time to time, inter alia: (i) Facebook Platform Polices set forth at http://developers.facebook.com/policy; (i) Facebook policies regarding the transfer and/or use of any data received from Facebook, including through use of the Facebook Platform (API, Social Plugins, etc.), whether aggregate, anonymous or derivative data and including user data or Facebook User IDs (the “Facebook Data”). Any Facebook Data (i.e. Unique User ID’s) that is transferred to Playtika by a Facebook Publisher must be encrypted/hashed according to Facebook requirements; and (ii) Facebook Polices Regarding methods for rewarding users with virtual currency or virtual goods as set forth http://www.facebook.com/help/212590022095343. Playtika shall have no responsibility for the Facebook Publishers’ compliance with the foregoing polices.
e. Without derogating from the above, Publishers that run their app or website on/through Google Platform (the “Android Publishers”) hereby represent and warrants that they strictly comply and shall strictly comply with all applicable Google rules, polices and guidelines, as may be amended by Google from time to time, inter alia, Google Platform Polices set forth at http://developer.android.com/legal.html, including without limitations, developer program, content, advertising, distribution through Google Play, data use policies and policies regarding the rewarding of users with virtual currency or virtual goods or in app purchases. Playtika shall have no responsibility for the Android Publishers’ compliance with the foregoing polices.
f. Without derogating from the above, Publishers that run their app or website on/through Apple Platform (the “Apple Publishers”) hereby represent and warrants that they strictly comply and shall strictly comply with all applicable Apple’s rules, polices, programs and guidelines, as may be amended by Apple from time to time, inter alia, Apple’s developer program policy and license, content policies, advertising policies, distribution through Apple store policies, data use policies and policies regarding the rewarding of users with virtual currency or virtual goods or In App purchases. Playtika shall have no responsibility for the Apple Publishers’ compliance with the foregoing polices.
g. Without derogating from the above, Publishers that run their app or website on/through Amazon Platform (the “Amazon Publishers”) hereby represent and warrants that they strictly comply and shall strictly comply with all applicable Amazon’s rules, polices, programs and guidelines, as may be amended by Amazon from time to time, inter alia, Amazon’s developer program policy and license, content policies, advertising policies, distribution through Amazon store policies, data use policies and policies regarding the rewarding of users with virtual currency or virtual goods or In App purchases. Playtika shall have no responsibility for the Amazon Publishers’ compliance with the foregoing polices.
h. Without derogating from the above, Publishers that run their app or website on/through Windows Platform (the “Windows Publishers”) hereby represent and warrants that they strictly comply and shall strictly comply with all applicable Windows’ rules, polices, programs and guidelines, as may be amended by Windows from time to time, inter alia, Windows’ developer program policy and license, content policies, advertising policies, distribution through Windows store policies, data use policies and policies regarding the rewarding of users with virtual currency or virtual goods or In App purchases. Playtika shall have no responsibility for the Windows Publishers’ compliance with the foregoing polices.
i. Without derogating from the above, Publishers that run their app or website on/through Yahoo Platform (the “Yahoo Publishers”) hereby represent and warrants that they strictly comply and shall strictly comply with all applicable Yahoo’s rules, polices, programs and guidelines, as may be amended by Yahoo from time to time, inter alia, Yahoo’s developer program policy and license, content policies, advertising policies, distribution through Yahoo store policies, data use policies and policies regarding the rewarding of users with virtual currency or virtual goods or In App purchases. Playtika shall have no responsibility for the Yahoo Publishers’ compliance with the foregoing polices.
Publisher shall indemnify, defend, and hold harmless Playtika, its parent and subsidiary companies (including representatives, successors and permitted assigns thereof) from and against any and all third party claims, losses, expenses, damages, liabilities and costs, including reasonable attorneys' fees, arising out of or relating to (i) the violation of any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of a third party; (ii) any slander, libel, or defamation contained on or within the advertising channels; (iii) violation of any applicable laws, rules and regulations by the Publisher; (iv) any breach of a representation, warranty or covenant of Publisher contained in this Agreement; and (v) Publisher’s use of the Ads, in a manner not contemplated by this Agreement.
At the request of Publisher, Playtika will defend (or settle), indemnify and hold Publisher, its affiliates, officers, directors and employees harmless, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, finally awarded against Publisher by a court of competent jurisdiction or as part of a settlement for the benefit of a third party, arising out of or in connection with any claim that Ad materials provided by Playtika and used by Publisher in a manner approved by Playtika in accordance with the terms of this Agreement violate the intellectual property rights of a third party; provided that (i) Playtika is given prompt notice of any such claim; (ii) Publisher provides reasonable cooperation to Playtika in the defense and settlement of such claim, at Playtika’s expense; and (iii) Playtika is given sole authority to defend or settle the claim; (iv) Publisher may not adjust, settle or compromise any claim brought against the Publisher for which the indemnity set forth herein is sought without the prior written consent of Playtika.
EXCEPT AS MAY BE EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND HEREBY DISCLAIMS ALL, WARRANTIES OF ANY KIND, (INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE SERVICES PROVIDED OR THE APPLICATION), WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE AND ANY WARRANTY OR CONDITION ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. NEITHER PARTY MAKES ANY GUARANTEE REGARDING THE VOLUME NOR TIMING OF ACTIONS IN CONNECTION WITH THE SERVICES PROVIDED UNDER THIS AGREEMENT OR THE APPLICATION. NEITHER PARTY WARRANTS THE RESULTS OF THE SERVICES PROVIDED UNDER THIS AGREEMENT OR THE APPLICATION, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY AD CAMPAIGN, THE NUMBER, TIMING OR COMPLETION OF INSTALLS, ACTIONS, CLICKS OR IMPRESSIONS, OR THE TOTAL AMOUNT OF ANY PAYMENT TO BE MADE TO PUBLISHER UNDER THIS AGREEMENT. NEITHER PARTY WARRANTS THAT ITS APPLICATION OR SERVICES PROVIDED BY SUCH PARTY OR APPLICATION(S) ARE ERROR-FREE OR THAT THE OTHER PARTY OR ANYONE ELSE WILL BE ABLE TO OPERATE THE APPLICATIONS OR RECEIVE THE SERVICES WITHOUT PROBLEMS OR INTERRUPTIONS.
12. Limitation of Liability
a. PUBLISHER ACKNOWLEDGES AND AGREES THAT ADS MAY APPEAR IN THIRD PARTY APPLICATIONS OR PLAYTIKA'S APPLICATIONS MAY INCLUDE ADS OF THIRD PARTIES AND THAT PLAYTIKA HAS NO CONTROL OVER (AND IS MERELY A PASSIVE CONDUIT WITH RESPECT TO) THIRD PARTY APPLICATIONS OR ADS AND RESOURCES. PLAYTIKA IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH THIRD PARTY APPLICATIONS OR RESOURCES AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH THIRD PARTY APPLICATIONS OR RESOURCES. PUBLISHER ACKNOWLEDGES AND AGREES THAT PLAYTIKA SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY THIRD PARTY CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH THIRD PARTY APPLICATION OR RESOURCE. PUBLISHER SHALL BE LIABLE AND SHALL NOT ADVERTISE IN ANY APPLICATION THAT IT KNOWS TO BE FALSE, DECEPTIVE, MISLEADING, UNLAWFUL OR FRAUDULENT, OR THAT WOULD BE CONSIDERED TO BE DEFAMATORY, HATE SPEECH, HARASSING, ABUSIVE OR OBSCENE USING A REASONABLE PERSON STANDARD.
b. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTION 10 ABOVE OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 ABOVE, IN NO EVENT SHALL EITHER PLAYTIKA OR PUBLISHER, THEIR AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, OR PUBLISHERS BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR PLAYTIKA, THEIR AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, OR PUBLISHERS HAVE BEEN NOTIFIED OR HAVE CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF THEREOF.
c. IN THE EVENT THAT A PARTY IS HELD LIABLE FOR ANY REASON UNDER THIS AGREEMENT, THE AGGREGATE LIABILITY OF EITHER PLAYTIKA OR PUBLISHER, THEIR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT (WHEN AGGREGATED WITH SUCH PARTY’S LIABILITY FOR OTHER CLAIMS ARISING OUT OF THIS AGREEMENT, BUT EXCLUDING – AND THE LIMITS IN THIS SUBSECTION (c) SHALL NOT APPLY TO -- INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTION 10 OR CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 OF THIS AGREEMENT SHALL BE LIMITED TO SUCH PARTY’S PAYMENT DERIVED FROM THE APPLICATIONS UNDER THIS AGREEMENT, AS WELL AS ANY PAYMENTS DUE OR PAYABLE TO PUBLISHER UNDER SECTION 5 ABOVE, DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.
d. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY OF THIS SECTION 12 SHALL NOT APPLY TO PUBLISHER’S BREACH OF SECTION 3(E) OF THIS AGREEMENT.
13. General Provisions
a. Notices. All notices under this Agreement shall be in writing and shall be properly addressed to the parties at the addresses set forth in the Insertion Order or at such other addresses as either party may later designate in writing. All notices shall be given by personal delivery, facsimile with a written confirmation mailed on the same day, United States [or other Governmental] first class mail, postage prepaid, return receipt requested, or overnight courier. Any such notice shall be deemed delivered upon the earlier of actual receipt or three (3) days after deposit of such notice. In the case of notice to Playtika, a copy shall be sent to the attention of Legal Department at Playtika, 23 Menachem Begin St., Tel Aviv 66183 Israel.
b. Force Majeure. Neither party will be liable to the other for any failure of performance under this Agreement (other than the obligation to make payments under this Agreement) due to acts of God; acts of the public enemy; strikes, lockouts, or other industrial disturbances; fires, floods, storms, droughts, or weather conditions; war, riots or terrorist acts; or, without limitation by enumeration, any other cause beyond the reasonable control of such party; provided, however, that such party shall promptly and diligently take such action as may be necessary and practicable under the then-existing circumstances to remove the cause of failure and resume performance at the earliest reasonable time and shall further give notice of such circumstance to the other party as soon as practicable. If any event of force majeure continues for more than sixty (60) consecutive days, the party not affected by such event of force majeure shall have the option to terminate this Agreement upon ten (10) days written notice to the other party.
c. Relationship of the Parties. Playtika and Publisher enter into this Agreement as independent contractors, and neither Playtika nor Publisher shall be or construed to be a partner, joint venture or employee of the other. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of the parties, provided that either party may not assign this Agreement without the prior written consent of the other party, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement without consent (i) to a parent or a majority-owned subsidiary company of such party, or (ii) pursuant to a merger, acquisition, amalgamation, consolidation or other corporate reorganization, or the sale of all or substantially all of its business or assets. Any assignment or attempted assignment in contravention of this provision shall be null and void.
d. Jurisdiction and Venue; Enforcement. This Agreement shall be construed under the laws of the State of Israel, without regard to its conflict of laws rules, and each party agrees that any judicial proceeding brought to enforce any provision of this Agreement or to recover damages for its breach shall be brought exclusively in the Tel Aviv-Jaffa courts and the parties respectively waive any objections to jurisdiction or venue of such court. The defending party shall be entitled to all reasonable attorneys’ fees and costs in connection with enforcing this Agreement.
e. No Waiver; Amendment. No waiver by either party of one or more breaches or defaults by the other in the performance of any provision of this Agreement shall operate or be construed as a waiver of any other or further breach or default whether of a like or different character. This Agreement shall not be modified or amended except by a written instrument specifically referencing this Agreement which has been executed by the parties hereto.
f. Severability. In the event any provision of this Agreement is declared to be void or unenforceable in whole or part, the other provisions of this Agreement and the remainder of the affected provisions shall continue to be valid; provided, however, that a court having jurisdiction may revise such provision to the extent necessary to make such provision valid and enforceable consistent with the intention of the parties.
g. Entire Agreement. This Agreement supersedes and excludes any prior agreements, representations, warranties or contracts between the parties relating to the subject matter hereof and contains all of the agreements of the parties with respect to the subject matter hereof. Any and all prior agreements, representations, statements, warranties or contracts relating to such subject matter shall be deemed conclusively to have been merged herein. In case of any conflict between the Insertion Order, these Terms of Agreement and any Exhibits, the order of priority for interpretation shall be the Insertion Order, followed by these Terms of Agreement followed by the Exhibits. Upon the signing of this Agreement by the parties hereto, any and all prior verbal or written agreements relating to the subject matter hereof, including but not limited to any amendments thereto, are terminated and of no further force and effect, and Playtika is hereby forever released from any liability or obligation arising from or relating to such.
h. Counterparts. This Agreement may be executed in counterparts, including facsimile or scanned counterparts, each of which shall be deemed an original and all of which when taken together will constitute one and the same instrument.
i. Section Headings. Section headings are purely for ease of reference and do not form part of or affect the interpretation of this Agreement.
Last Updated: November 2016