PUBLISHER TERMS OF SERVICE
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 Foreshop Holdings Ltd. and its subsidiaries (“Company” or “Foreshop”) and Publisher. Each Company and Publisher shall be referred to as a “Party” and jointly as the “Parties”.
Foreshop will enable the provision of commercial advertisement ads on Publisher’s Site(s) and properties (as defined below) through the use of the Foreshop platform (the “Services”). Publisher may implement the Services only on such approved Publisher’s properties as set forth in a given IO (the “Site(s)“) and in accordance with the instructions agreed to by the parties hereto. Any change or amendment to the list of Site(s) must be done in writing and approved in advance by Foreshop. Publisher shall be responsible and solely liable for all actions of its partners and affiliates, including without limiting to, compliance with the terms of this Agreement and any IO.
Consideration. (i) In return for the Services, Foreshop 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 by Foreshop from advertisers in relation to Qualified Transactions as part of the Services, less any taxes that Foreshop is required to pay or collect in relation to the supply of Services, any credit card processing fees, bad debts 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.
Foreshop will pay Publisher in accordance with the revenue statement NET45 business days following the end of the calendar month for which payment is due. The Publisher acknowledges and agrees that payment may be due only for Qualified Transactions. The Publisher acknowledges and agrees upon that Foreshop, may at its 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. To the extent that inventory is determined by Foreshop to be a result of non-qualified transactions, then, in addition to any other remedy available to Foreshop, Publisher agrees that invalid impressions, invalid actions and invalid traffic shall not be payable by Foreshop. Any and all payments previously made by Foreshop to Publisher on account of Publisher Sites which are subsequently deemed to include non-qualified transactions. Foreshop 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. 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 the Site(s); Without limiting the above, it is hereby clarified that transactions due to injection traffic, bot traffic or automatic injections by toolbars shall not be considered Qualified Transactions.
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.
Reporting. Calculation of all payments made hereunder to Publisher will be made based solely on Foreshop’s reporting system and statistics. Foreshop will provide Publisher with access to its reporting interface that will enable Publisher to view an estimate of any amounts owed to it under the IO.
Confidentiality. Publisher agrees to keep confidential the terms of this Agreement, the terms of the IO and any and all numbers, statistics and information with respect to the Services. Publisher agrees to keep all and any non-public information which is given by Foreshop confidential, unless otherwise approved in writing by Foreshop. Foreshop may disclose the terms of the IO to third party processors on its behalf and to its advisors, as shall be necessary.
Term, Termination and Renewal. This Agreement shall be in full force and effect for a period of one (1) year beginning on the Effective Date of the IO and shall automatically renew for successive one (1) year terms, provided that Foreshop may terminate the IO signed by the parties at any time and without cause, upon 48-hours’ notice; Notwithstanding the aforementioned, Foreshop shall be entitled to terminate the Agreement immediately in case of breach by the Publisher and/or anyone on its behalf. Upon termination of the IO, Foreshop’s obligations relating to the Services will terminate.
Publicity. Publisher agrees that Foreshop may use Publisher’s name and logo in presentations, marketing materials, financial reports and listings.
Indemnification. Publisher will defend, hold harmless and indemnify Foreshop and Foreshop’s affiliates, including any of Foreshop’s successors-in-tile and assigns, its officers, directors, shareholders, employees, contractors, agents and representatives from and against any and all losses, damages, claims, demands, suits, liabilities, fines, penalties, costs, obligations, settlement payments, awards, judgments, deficiencies or other charges (“Losses”) and any and all expenses incurred in connection with investigating, defending or asserting any claim, action, suit or proceeding (“Expenses”) arising out of, resulting from or based upon any pending or threatened claim, action, proceeding or suit by any third party or not involving third party’s claim, in relation to (i) alleged breach of Publisher’s representations, warranties and obligations made hereunder , or (ii) Publisher’s collection or use of any data in connection with this Agreement or any IO; or (ii) the Site(s), the content of the Sites and the use by Foreshop and its advertising partners and affiliates of the Sites or Publisher’s services and materials (iii) any claim related to the modified or amended ads or materials or based on an assertion that the Publisher, the Sites or the content linked therewith, infringe any right of third party, including without limited to, intellectual property right.
NO WARRANTY; LIMITATION OF LIABILITY. Foreshop’s 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. Foreshop does not warrant or guarantee that the service or the operation thereof will be uninterrupted or will meet publisher’s needs. It is a fundamental agreement, and the Publisher acknowledges this and understands, and agrees that the Services and actions in relation thereto are being provided by automated means and third parties, and that Foreshop is not responsible for, nor does it give any warranty or representation as to the outcome of such process. In this regard, Foreshop will not 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, notwithstanding if Foreshop should have been aware or advised of the possibility of such damages.
In no event will Foreshop’s liability arising out of this Agreement from any cause of action whatsoever will exceed the aggregate amounts actually paid by Foreshop under this Agreement to Publisher during the three (3) months preceding to the date the cause of action arose. Foreshop is not responsible for any web sites, application(s) or material that can be linked to or from the ads or for the results of any act or omission of any advertiser or any other provider of or for Foreshop.
Data Protection. For the purposes of these terms ‘Applicable Data Protection Law’ shall mean: (a) any applicable local implementing legislation of the Data Protection Directive; (b)from 25th May 2018, the General Data Protection Regulation ((EU) 2016/679 (“GDPR”), read in conjunction with and subject to any applicable UK national legislation that provides for specifications or restrictions of the GDPR’s rules; (c) from the date of implementation, any applicable local legislation that supersedes or replaces the GDPR in a country or territory or which applies the operation of the GDPR as if the GDPR were part of any applicable local legislation; and (d) any other applicable data protection or privacy law of any jurisdiction. Foreshop and the Publisher agree to comply with the relevant provisions of Applicable Data Protection Laws. To the extent that any party processes any personal data that is either Controlled (as defined in Schedule 1) by another party in relation to this Agreement or Processed (as defined in Schedule 1) by another party on behalf of a third party Controller, it shall comply with the provisions contained in Schedule 1 of this Agreement. Where relevant, Publisher warrants and undertakes that it has obtained and shall obtain all necessary consents (in accordance with all applicable law, including Applicable Data Protection Law) in relation to any Personal Data Controlled by the Publisher and Processed (each as defined in Schedule 1) by Foreshop in accordance with this Agreement.
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 the courts of 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 the parties 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. Foreshop reserves the right to modify, from time to time and in its sole discretion, any of the terms of this Agreement and Publisher waives the right to receive notifications for changes. In the event that Publisher continue the use of the services, it shall be deemed as acceptance by Publisher of the modifications or changes. If Publisher does not agree to the modifications or changes, Publisher shall provide Foreshop with written notification and stop using the services.
In this Schedule the following terms shall have the following meanings:
“Controller” shall have the same meaning as set out in Applicable Data Protection Law;
“Data Subject(s)” shall have the same meaning as set out in Applicable Data Protection Law;
“European Economic Area, EEA” means the member states of the European Union from time to time plus additional states that are party to the EEA Agreement from time to time;
“Personal Data” shall have the same meaning as set out in Applicable Data Protection Law;
“Personnel” shall mean any staff (including temporary, casual and unpaid workers) and sub-contractors employed or appointed by the Processor;
“Processing” shall have the same meaning as set out in Applicable Data Protection Law and other parts of the verb “to process” shall be construed accordingly;
“Processor” shall have the same meaning as set out in Applicable Data Protection Law.
1.2 For the purposes of this Schedule the parties agree either Foreshop or the Publisher may be the Controller or the Processor under this Agreement.
1.3 Where the Processor Processes Personal Data on behalf of the Controller, the Processor shall:
1.3.1 process the Personal Data only in accordance with the documented instructions of the Controller;
1.3.2 implement appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and risk which might result from any unauthorized or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected;
1.3.3 only employ or appoint Personnel to Process the Personal Data who have given binding undertakings of confidentiality;
1.3.4 not transfer Personal Data outside of the EEA without the prior written consent of the Controller and (where the Controller consents to such transfer) covenant that the transfer shall be made in such a way as to ensure that the level of protection offered to natural persons by Applicable Data Protection Law is not undermined, which may, at Controller’s election, involve the parties entering into standard contractual clauses as approved pursuant to ‘Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries’ (or any applicable superseding clauses);
1.3.5 comply with any obligations placed on it under Applicable Data Protection Law;
1.3.6 obtain prior written consent from the Controller in order to transfer the Personal Data to any third parties and where the Controller consents, the Processor shall:
(a) ensure that the third parties are subject to, and contractually bound by, at least the same obligations as the Processor under this paragraph 1.3;
(b) provide to the Controller copies of any documentation to demonstrate compliance with the obligations under this paragraph 1.3; and
(c) remain fully liable to the Controller for all acts and omissions of any third parties;
1.3.7 immediately alert and inform the Controller of a Personal Data breach (including, but not limited to, any unauthorized or unlawful Processing, loss of, damage to or destruction of the Personal Data) suffered by the Processor or third parties to which Personal Data has been transferred (“Personal Data Breach”) and provide all necessary co-operation and assistance to enable the Controller to comply with its obligations under Applicable Data Protection Law;
1.3.8 permit, or procure permission for, the Controller (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit the Processor’s data Processing activities (and/or those of its agents, sub-contractors, Affiliates and third parties) and comply with all reasonable requests for information or directions by the Controller to enable the Controller to verify and/or procure that the Processor is in full compliance with its obligations under this Agreement;
1.3.9 immediately notify the Controller if it receives a request from or on behalf of a Data Subject to have access to that person’s Personal Data or to exercise any of their other rights under Applicable Data Protection Law (a “Data Related Request”);
1.3.10 not respond to any Data Related Request without the prior written consent of the Controller and shall provide the Controller with full co-operation and assistance in relation to a Data Related Request, including by:
(a) providing the Controller with full details of the Data Related Request;
(b) assisting the Controller to comply with a Data Related Request (within any relevant timescales required by applicable law, including Applicable Data Protection Law and in accordance with the Controller’s instructions;
(c) providing the Controller with any Personal Data it holds in relation to an individual; and
(d) providing the Controller with any other relevant information requested by the Controller;
1.3.11 unless applicable law requires otherwise, upon termination of this Agreement:
(a) at the option of the Controller comply or procure the compliance with the following:
(i) return to the Controller all Personal Data and any other information provided by the Controller to the Processor; and/or
(ii) delete all Personal Data provided by the Controller to the Processor permanently, safely and securely and provide the Controller with a certificate of destruction; and
(b) cease to process the Personal Data;
1.3.12 where the laws of the country where the Processor is established require the Processor to transfer the Personal Data to a third country or an international organisation, inform the Controller as soon as reasonably possible of that legal requirement unless that law prohibits such communication on important grounds of public interest.
1.4 The nature/purpose of the Processing under this Agreement is: to enable the Controller to carry out its obligations under the Agreement.
1.5 The duration of the Processing under this Agreement will be for the term of this Agreement or as otherwise required by applicable law.
1.6 The types of Personal Data which may be subject to Processing under this Agreement may concern employees, consultants, subcontractors or customers of each party.