Last updated: December 17, 2019
These terms of service (the “Terms“) together with any other agreements or terms incorporated by reference govern the use of the Services. These Terms constitute a binding and enforceable legal contract between OOLO and any partner (the “Partner“) entering into an order form incorporating these Terms by reference (an “Order“). By accepting these Terms through execution of an Order, or by using the Services, Partner agrees to these Terms.
- Services; License
- Subject to the terms and conditions of these Terms, and any applicable order form entered into between Partner and OOLO (an “Order“, and together with the Terms, the “Agreement“), OOLO shall provide Partner with services detailed in the Order (“Services“) through its proprietary technology for alerts on data irregularities as identified by OOLO’s algorithms, for the data monitored by OOLO (the “OOLO Platform“).
- During the Term and subject to Partner’s compliance with the terms and conditions of this Agreement, OOLO grants Partner a non-exclusive,non-transferable, non-sublicensable, limited, revocable right (i) for Partner employees, agents, representatives and contractors who are permitted access to the Services by OOLO (“Authorized Users“) to access the OOLO Platform, for Partner’s internal business use, on the Partner Platforms for which the Services are to be provided, as agreed between the parties in the Order; and (ii) implement the script provided by OOLO(to the extent provided) in the Partner Platforms to enable the Services according to OOLO’s instructions and technical documentation(“Documentation“).
- Partner’s Obligations. Partner hereby undertakes to:
- Provide OOLO with complete and accurate data sources at all times with regard to traffic, ad placements and ad revenue (the “Data Sources“), and to implement such means for transfer of such data as shall be mutually agreed by the parties. The Partner shall provide OOLO either with API access to Data Sources or, when an API access is not available, access to the Data Source itself through Partner’s credentials thereto. Partner acknowledges and agrees that the accuracy of the Services depends on the quality and completeness of the data provided to OOLO;
- Ensure that OOLO may rightfully access the Data Sources as agreed between the parties, and assumes full liability for such access in compliance with any terms governing the use of such Data Sources and with applicable law;
- If agreed between the parties, Partner will implement the script provided by OOLO to enable additional services.
- Use the OOLO Platform, the Services, and all related software and Documentation in compliance with all applicable laws and regulations, including but not limited to applicable data security and privacy laws; and
- Manage and secure all login credentials used by Authorized Users in connection with their use of the OOLO Platform, and protect the same against unauthorized use or disclosure using reasonable standard in the industry. Partner shall be liable for all actions taken on the OOLO Platform through use of the login credentials of its Authorized Users.
In consideration for the Services, Partner shall pay OOLO the Fees, which may be updated by OOLO effective on the commencement of each Renewal Term, by written notice to the Partner at least 30 days prior to the commencement of such Renewal Term. Fees shall be payable on a quarterly basis in advance, within 30 days of issuance of the applicable invoice. Payment of Fees shall be made by wire transfer or ACH to the account set forth in the Order, or by debit of a payment card provided by Partner and verified in advance by OOLO. The Fees are exclusive of sales, excise, VAT or any other similar taxes. In the event that Partner is required by law to deduct and/or withhold any amounts from any payments due hereunder, it shall gross-up and increase the amounts to be paid to OOLO so that the actual net amount to be paid to OOLO shall equal the fees that would have been due to OOLO without such deduction or withholding. Fees are non-refundable.
- Intellectual Property Rights; Confidentiality
- All intellectual property rights in the OOLO Platform, Services, Documentation and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with OOLO. Partner shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the OOLO Platform, Service or any part thereof for any purpose; (ii) not represent that it possesses any proprietary interest in OOLO Platform, Service, Documentation or any part or derivative thereof; (iii) not directly or indirectly, take any action to contest OOLO’s intellectual property rights or infringe them in any way; (iv) except as specifically permitted in writing by OOLO, not use the name, trademarks, trade-names, and logos of OOLO; (v) except as specifically permitted herein, not copy any part or content of the OOLO Platform, reports or documentation other than for Partner’s own internal business purposes; (vi) not copy any features, functions or graphics of the OOLO Platform or use it to build a competitive product or service; and (vii) not remove the copyright, trademark and other proprietary notices contained on or in OOLO’s Platform, products, services or documentation. All intellectual property rights in the Campaigns lie exclusively with Partner or its licensors. Partner shall take no action, directly or indirectly, to register OOLO trademarks (or their variation), domain names, or copyrights in its own name and shall provide commercially reasonable assistance to OOLO to prevent the occurrence of such activity by any third parties.
- Partner hereby grants to OOLO a non-exclusive, royalty-free, perpetual, worldwide license to use, reproduce, and prepare derivative works of all data provided to OOLO in connection with this Agreement, to permit OOLO to perform the Services to Partner as set forth in this Agreement, and to analyze the anonymized data obtained from Data Sources solely for its internal use in order to improve the OOLO Platform, all subject to OOLO’s compliance with applicable law and privacy regulations.
- The receiving party agrees (i) not to disclose the disclosing party’s Confidential Information to any third parties other than to its directors, employees, advisors, or consultants (collectively, its “Representatives”) on a “need to know” basis and provided that such Representatives are bound by confidentiality obligations not less restrictive than those contained herein; (ii) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (iii) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if the receiving party is required by legal process or applicable law, rule, or regulation to disclose any of the disclosing party’s Confidential Information, then prior to such disclosure, if legally allowed, receiving party will give prompt notice to the disclosing party so that it may seek a protective order or other appropriate relief. The confidentiality obligations hereunder shall expire three years from the date of termination or expiration of this Agreement and shall supersede any previous confidentiality undertakings between the parties.
- For the purposes hereof, “Confidential Information” means any proprietary or trade secret information disclosed by one party to the other which can be reasonably understood under the circumstances to be confidential, but excluding any information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) the receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of or reference to the Confidential Information.
- Data Protection and Privacy.
The Parties acknowledge, agree and undertake that OOLO does not and will not process personal data or personally identifiable information (as such terms are defined under applicable law) of Partner’s end users.
- Disclaimer; Limitation of Liability
- EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, OOLO PROVIDES THE OOLO PLATFORM, SERVICES, AND DOCUMENTATION TO PARTNER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATION OF ANY KIND, AND OOLO EXPRESSLY DISCLAIMS ALL WARRANTIES – STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHENTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. OOLO FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE OOLO PLATFORM OR ANY RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Partner acknowledges that the quality and accuracy of diagnostics and recommendations by the OOLO Platform are dependent on the accuracy and completeness of the information provided. PARTNER ACKNOWLEDGES THAT OOLO SHALL NOT BEAR ANY LIABILITY OR RESPONSIBILITY FOR FAULTS, ERRORS OR ERRONEOUS RECOMMENDATIONS PROVIDED ON THE BASIS OF UNTIMELY, INCOMPLETE, INACCURATE, FALSE OR MISLEADING INFORMATION PROVIDED BY PARTNER OR THE AUTHORIZED USERS.
- EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD, OR WITH RESPECT TO OOLO’S INDEMNIFICATION OBLIGATIONS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY PARTNER TO OOLO DURING THE 12 MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT OOLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- OOLO shall defend, indemnify and hold harmless Partner, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to any claim that the OOLO Platform infringes any third party intellectual property right. Indemnification hereunder shall be conditioned upon: (i) Partner notifying OOLO of the claim immediately upon becoming aware thereof, (ii) Partner allowing OOLO to assume full control of the defense and settlement of such claim, and (iii) Partner reasonably cooperating with OOLO in the defense and settlement of the claim.
- Term; Termination
- The Agreement shall commence on the Effective Date and continue for a period of 12 months thereafter (the “Initial Term“). Following the Initial Term, the Agreement shall automatically renew for consecutive 12-month periods (each, a “Renewal Term” and together with the Initial Term, the “Term“), unless otherwise terminated in accordance with the terms of this Section 7 (the “Term“).
- Either party may terminate this Agreement immediately by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within seven days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
- Upon termination of this Agreement, Partner will immediately cease use of the OOLO Platform and any Service, including any Campaign Tags then in use, each party shall return to the other party all of the other party’s Confidential Information in its possession and any outstanding Fees shall become due and payable. Sections 4, 5, 6, 8 and 10 shall survive any expiration or termination of this Agreement.
All notices or other communications hereunder shall be in writing and given in person, by registered mail, by an overnight courier service which obtains a receipt to evidence delivery, or by facsimile or email transmission with written confirmation of receipt, addressed to the address set forth in the Order or to such other address as any party hereto may designate to the other in accordance with the aforesaid procedure. All notices and other communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by facsimile or email transmission shall be deemed given on the business day following transmission, and those sent by registered mail shall be deemed given three calendar days after posting.
OOLO may issue a press release, case study, or general marketing communications concerning its involvement with Partner, including mentioning Partner as a client on its website. Partner agrees to provide a reasonable level of cooperation and assistance in connection with development and publication of a case study related to Partner’s use of the Service.
This Agreement constitutes the entire agreement between OOLO and Partner and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. All amendments will be made only in writing. Neither party shall transfer or assign its rights or obligations under this Agreement to any third party, except to an affiliate or in the case of merger or sale of all or substantially all of the assigning party’s assets. Any purported assignment contrary to this section shall be void. If any part of this Agreement is declared invalid or unenforceable for any reason, such part shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the parties, or if it cannot be so modified, then eliminated, and such elimination shall not affect the validity of any remaining portion, which shall remain in force and effect. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance. This Agreement is governed by the laws of the State of Israel, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the courts of Tel Aviv, Israel.