Terms & Conditions

Last Revised: September 27, 2016

Adgorithms Ltd., creators of Albert, a company organized and existing under the laws of the State of Israel, with its principal place of business at 20 Lincoln Street, Tel-Aviv, Israel and, as applicable pursuant to Adgorithms’ discretion, its Affiliates (“Adgorithms”) hosts, operates and provides its customer (the “Customer”) with access to, and use of, a proprietary online ALBERT™ platform, as defined and described below), and related services. These Services Terms and Conditions (the “Terms”) and any Service Order Form shall govern your access to, and use of the Platform and Hosted Services (both as defined below).

By entering to a Service Order Form or by opening an Account (as defined below), Customer represents and warrants that it has read and understood the following Terms and Customer agrees to be bound by them and to comply with all applicable laws and regulations regarding its use of the Platform and Hosted Services, and Customer acknowledges that these Terms constitute a binding and enforceable legal contract between Customer and Adgorithms.

PLEASE READ THESE TERMS BEFORE EXECUTING A SERVICE ORDER FORM, USING THE PLATFORM AND HOSTED SERVICES OR OPENING AN ACCOUNT. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, CUSTOMER MUST NOT BEFORE EXECUTE A SERVICE ORDER FORM, USE THE PLATFORM OR HOSTED SERVICES OR OPEN AN ACCOUNT IN ANY MANNER WHATSOEVER.

1. Definitions

1.1. The preamble and any schedules annexed to these Terms constitute an integral part hereof and shall be read jointly with its terms and conditions.
1.2. The headings of the sections in this Terms are for the sake of convenience only and shall not serve in the interpretation of the Terms.
1.3. The following definitions apply to capitalized terms throughout this Terms, unless such terms

1.3.1. Account” means an account enabling a person authorized by the Customer to access and use the Hosted Services;
1.3.2. Ad Creative” means any test, rich media, graphics, photos, video and/or audio material or combination thereof, and any other creative content, promotional in nature, that is provided to Adgorithms by Customer for use in the Hosted Services.
1.3.3. Affiliate” means, with respect to Adgorithms, any person or entity which directly or indirectly controls, is controlled by, or is under common control with Adgorithms as of the date of these Terms, for as long as such relationship remains in effect. For purposes of this definition, “control” means the direct or indirect ownership of at least 50% of the outstanding share capital or voting securities of Adgorithms, or the right to control the policy decisions of Adgorithms.
1.3.4. Confidential Information” means any and all information disclosed, provided or made accessible by, or Services; thereof, and any other creative content, promotional in nature, that is provided to Adgorithms by Customer for use in the Hosted Services. is controlled by, or is under common control with Adgorithms as of the date of these Terms, for as long as such relationship remains in effect. For purposes of this definition, “control” means the direct or indirect ownership of at least 50% of the outstanding share capital or voting securities of Adgorithms, or the right to control the policy decisions of Adgorithms. on behalf of, one Party (“Disclosing Party”) to the other Party (“Receiving Party”) and/or any of its key persons, whether in writing, orally or in any other form which is not in the public domain, or regarding past, present, or future marketing and business plans, technical, financial or other proprietary or confidential information of the Disclosing Party, or which, given the nature of the information or material, or the circumstances surrounding the disclosure or provision, reasonably should be understood to be confidential or proprietary, as well as improvements, derivatives, upgrades, updates, and know-how related thereto. Confidential Information does not include information that: (i) is already or becomes generally known or available to the general public through no act or omission by the Receiving Party in breach of this Terms; (ii) is already known to the Receiving Party at the time of disclosure without breaching any confidentiality obligation, as such may be evidenced in the Receiving Party’s written records; (iii) is rightfully disclosed to the Receiving Party by a third party, who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; (iv) is independently developed by the Receiving Party without use of, reference to, any of the Confidential Information of the Disclosing Party, as such may be evidenced in the Receiving Party’s written records; (v) is released and disclosed pursuant to a binding order of a government agency or a court, provided that the Receiving Party (a) notifies the Disclosing Party of such release or disclosure with as much notice as reasonably possible so that the other Party may seek a protective order or other appropriate remedy; and (b) uses reasonable efforts to limit such release or disclosure only to the extent required.
1.3.5. Customer Data” means all data, works, materials and Customer’s list of customers: (i) uploaded to, or stored on, the Platform (as defined below) by the Customer; (ii) collected by Adgorithms through the Platform and transmitted by the Platform; (iii) supplied by the Customer to Adgorithms through or pursuant to the use of the Platform, including for uploading to, transmission by or storage on the Platform; or (iv) generated by the Platform as a result of the use of the Hosted Services by the Customer. For clarity, Ad Creative constitutes Customer Data.
1.3.6. Data” means collectively Customer Data, Customer Social Network Advertiser Account Data (as defined below) and End User Data.
1.3.7. Documentation” means the documentation for the Hosted Services produced by Adgorithms and delivered or made available by Adgorithms to the Customer;
1.3.8. End User” means any individual who views or listens to, is able to view or listen to, or interacts with, any advertisement of the Customer, delivered through the Platform and Hosted Services.
1.3.9. End User Data” shall mean End User data directly or indirectly collected by Adgorithms and/or Customer during the performance of these Terms whether or not voluntarily supplied by the End User, and which may include, without limitation, unique device identifiers (UDIs), cookie pools and Personal Information (as defined below).
1.3.10. Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
1.3.11. Hosted Services” means the access to, and use of, the Platform, as specified in the Hosted Services Specification, which will be made available by Adgorithms to the Customer as a software-as-a-service via the internet in accordance with these Terms;
1.3.12. Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights, including but not limited to copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, utility models and rights in designs;
1.3.13. Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates, in the sole and absolute discretion of Adgorithms;
1.3.14. Permitted Purpose” means the use of the Platform for the sole purpose of marketing and advertising the Customer’s services;
1.3.15. Personal Information” means sensitive and personally identifiable information about an End User, that can be used to uniquely identify, contact, or locate an End User or can be used with other sources to uniquely identify an End User, including first name, last name, age, address, geo-location, individual financial account numbers, insurance plan numbers, precise information about economic status, health or medical conditions, personal status, chastity, government-issued identifiers (such as a Social Security number), and any personally identifiable information about a minor under the age of 13.
1.3.16. Platform” means Adgorithms’ proprietary software as a service platform, called “Albert”, which automatically manages, plans and executes Customer’s marketing strategies and activities, and which is managed and used by Adgorithms to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
1.3.17. Services” means any services that Adgorithms provides to the Customer, or has an obligation to provide to the Customer, under these Terms, including without limitation the provision of the Hosted Services, the Maintenance Services and the Support Services;
1.3.18. Support Services” means basic support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
1.3.19. Term” means the term of these Terms, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
1.3.20. Update” means a periodic or one-time updates or minor improvements to the Platform, including but not limited to required regular recurring updates and bug fixes, and which may identified by a change in the digit to the right of the right-most decimal; and
1.3.21. Upgrade” means a major software release released by Adgorithms involving additional and/or improved functionality to the Platform and/or otherwise identified by a change in the digit to the left of the left-most decimal point.
2. Hosted Services

2.1. Subject to Customer’s compliance with its obligations under these Terms, Adgorithms will provide Customer the Services, the Platform and related Services, as set forth in the Service Order Form executed by and between the Parties, for the duration of the Term.
2.2. Upon the execution of each Service Order Form, Adgorithms shall create an Account for the Customer and shall provide to the Customer personal login details and credentials for that Account (“Login Credentials”) solely for use by Customer’s system administrators and personnel explicitly authorized and designated by Customer to use and access the Platform and the Hosted Services on its behalf (“Personnel”).
2.3. Customer and its Personnel may only access and use the Hosted Services through the Login Credentials issued to them by Adgorithms. Customer is solely responsible for maintaining the confidentiality of the Login Credentials. Any instruction, action or activity occurring through any such Login Credentials shall be deemed to be provided and/or taken by Customer, and Customer shall be solely responsible for all activities that occur under such Login Credentials, including for any unauthorized use of such Login Credentials or any other breach of security, or any related damage or loss.
3. License

3.1. Subject to the terms and conditions of these Terms, Adgorithms provides to the Customer, on a non-exclusive basis, during the Term only, the Services and to access and use, and to allow its Personnel to access and use, the Platform that are provided by Adgorithms in conjunction with the Hosted Services for the Permitted Purpose, in accordance with the Documentation during the Term.
3.2. The provision of the Services by Adgorithms to the Customer under Clause 3.1 is subject to the following limitations: (i)the Hosted Services may only be used by Customer’s authorised Personnel (which may include Customer’s 3 authorized officers, employees, agents and subcontractors), provided that: (a) the Customer shall be fully liable and responsible for any act or omission of its Personnel; and (b) the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the Subscription Form
3.3. Except to the extent expressly permitted in these Terms, the Customer shall (i) only use the Hosted Servicesand the Platform for the lawful Permitted Purposes, as contemplated by these Terms; (ii) not use the Platform and the Hosted Services in connection with obscene, defamatory, slanderous, hateful, fraudulent, illegal or politically disruptive material, the definition of which shall be at the sole discretion of Adgorithms; (ii) engage in any hostile activity toward the Platform and Hosted Services; (iii) include in the Ad Creative any content that may encourage clicks with offers of cash, prizes or anything else of value in exchange for services; (v) use content, criteria, data, or a design in the Ad Creative that encourages or is reasonably likely to lead to accidental or unintended clicks by a user on any advertisement; (vi) sell, lease, transfer, assign, or distribute the Platform, or any part thereof, without Adgorithms’ prior written consent; (vii) reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the Platform or any part thereof; (viii) modify, revise, enhance, or alter the Platform or any part thereof; (ix) use the Platform and the Hosted Services to advertise malicious content, spyware, cause of security breached, Trojans or the like; (x) copy, emulate or make derivative works, or allow copies, emulations or derivative works of the Platform, Hosted Services or any part of any of the foregoing to be made (xi) directly use, access, launch or activate the Platform or the Hosted Services and any program, code or any other technology, content, software, materials and/or documentation belonging to Adgorithms, through or from, or otherwise incorporate them in, any software, application, site or other means; (xii) create or attempt to create a substitute or similar service or platform to the Hosted Services and the Platform through use of, or access to, the Platform or any of Adgorithms’ Intellectual Property; (xiii) record via video, photograph, take screenshots, or otherwise make available Platform structure (platform, user interface, etc.) or tutorial videos of Adgorithms to third parties; and (xiv) engage in any action or practice that reflects poorly on Adgorithms or otherwise disparages or devalues Adgorithms’ reputation or goodwill. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.4. Customer hereby acknowledges and agrees that it is responsible for: (i) providing accurate Ad Creative and information regarding any advertising or marketing campaign that it wishes to run through the Platform and Hosted Services; (ii) adhering to, and ensuring that all authorized Personnel using the Hosted Services adhere to, the Acceptable Ad Creative and Content Policy, available at http://www.adgorithms.com/content-policy; (iii) ensuring that the Ad Creative do not cause damage or impairment to Adgorithms, the Platform or the Hosted Services; (iv) obtaining and at all times maintaining all rights, license and clearances necessary to utilize the Hosted Services and the Platform as provided under this Terms, and to provide Adgorithms the Ad Creative, to the extent applicable; (v) posting on its website its privacy policies and adhering to such privacy policies, which abide by applicable laws; and (vi) any acts or omissions of any of its employees, agents or subcontractors, and ensuring that such agents and subcontractors comply with the terms of these Terms.
4. Availability

During the Term, Adgorithms shall use commercially reasonable efforts to ensure the Hosted Service’s
availability, except for: (a) scheduled downtime; or (b) any unavailability caused directly or indirectly by circumstances beyond Adgorithms’ reasonable control, including without limitation, (i) force majeure event including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems; (ii) Internet service provider or public telecommunications network failures or delays, or denial of service attacks; (iii) a fault or failure of the Customer’s computer systems or networks; or (iv) any breach by the Customer of these Terms.

5. Technical Support Services

Adgorithms shall provide the Customer with technical support during the Term, as specified in the Service
Order Form, at no additional cost.

6. Fees and Payment Terms

6.1. In consideration for the provision of the Services, the Customer shall pay Adgorithms the amounts set forth on each Service Order Form (the “Fees”) in accordance with the payment terms stated in the Service Order Form.
6.2. Any late payment shall accrue interest at a rate of one and one half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.
6.3. All Fees are stated and payable in US Dollars, and are exclusive of VAT. Customer will pay (or reimburse Adgorithms as the case may be) for all taxes related to or arising out of these Terms, including any sales, use, excise, gross receipts, property, privilege, value-added, or other federal, state or local taxes or tariffs (including any interest or penalties thereto) now in force or enacted in the future, except for those taxes based on Adgorithms’ income. Customer may not withhold or set off any Fees due to Adgorithms hereunder.
6.4. Adgorithms may suspend the provision of the Hosted Services and/or Services if any Fees due to be paid by the Customer to Adgorithms under these Terms is overdue, and Adgorithms has given the Customer at least fourteen (14) days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services and/or Services on this basis.
7. Data

7.1. Customer Data

7.1.1. During the Term and in the course of performance of the obligations hereunder, Customer will be required to provide Adgorithms, and insert into the Platform Customer Data.
7.1.2. Customer shall retain ownership of all Customer Data belonging to it and provided to Adgorithms and Customer hereby grants Adgorithms a non-exclusive, sub-licensable (solely to its hosting, connectivity, telecommunications and other third party service providers), worldwide, royalty-free license, during the Term, to use, copy, reproduce, store, process, publish, distribute and edit the Customer Data provided to Adgorithms: (i) solely as necessary to provide the Services and to allow Adgorithms to perform its obligations to Customer under, and in accordance with, these Terms; (ii) to compile aggregated statistics, reports and research for internal or marketing use and for development and/or evaluation of additional or modified services, features and functionality with respect to the Hosted Service and/or the Platform; and (iii) to disclose any Customer Data if required by law or valid order of a competent court in any applicable jurisdiction, or other governmental authority. Adgorithms shall treat the Customer Data as Confidential Information (as such term is defined herein), with all that it entails pursuant to these Terms.
7.1.3. The Customer represents and warrants to Adgorithms that it has the full right and authority to provide Adgorithms and its third party service providers with the Customer Data for the purpose of carrying out the Services under this Agreement and the provision and the use thereof by Adgorithms in accordance with this Agreement
7.2. End User Data

7.2.1. If, during the course of performing the obligations under these Terms, End User Data is provided to Adgorithms and/or Customer, or is used to provide the Services, Adgorithms shall not have any right, title or interest in or to any such End User Data.
7.2.2. Adgorithms will not use the Platform or the Hosted Services to collect, store or use any information that can be used on its own or with other information to identify, contact, or locate an End User, except to the extent necessary for providing the Services to Customer. Adgorithms shall only use such End User Data: (i) in connection with the performance of its obligations and the provision of the Hosted Services under these Terms; (ii) to compile aggregated, anonymous statistics, reports and research for internal or marketing use and for development and/or evaluation of additional or modified services, features and functionality with respect to the Hosted Service and/or the Platform. Adgorithms’ use of the End User Data, including the right to transfer such End User Data (in whole or in part) to the Customer may be restricted, including under Adgorithms’ third party agreements. Adgorithms reserves the right to disallow the transfer of such End User Data.
7.3. Customer Social Network Advertiser Data

To the extent Customer has an advertiser account with a social network for advertising, including without limitation, Google, Facebook, Instagram, Twitter, and YouTube (“Customer Social Network Advertiser Account”) or to the extent Customer requests Adgorithms to open a Customer Social Network Advertiser Account on behalf of the Customer, for the provision of the Hosted Services, Customer will provide Adgorithms with its username, password and other relevant details for login to the Customer Social Network Advertiser Account (“Customer Social Network Advertiser Account Data”). Customer hereby Customer hereby grants Adgorithms a non-exclusive, sub-licensable (solely to its hosting, connectivity, telecommunications and other third party service providers), worldwide, royalty-free license, during the Term, to use the Customer Social Network Advertiser Account Data solely as necessary to provide the Services to Customer and to allow Adgorithms to perform its obligations to Customer under, and in accordancewith, these Terms.

7.4. Data; Data protection and Privacy

7.4.1. The Customer represents and warrants to Adgorithms that it has the full right and authority to provide Adgorithms and its third party service providers with the Data and the provision and the use thereof by Adgorithms in accordance with these Terms will not: (i) breach the provisions of any applicable law, statute or regulation (including any privacy protection or employment laws) or breach any contractual agreement to which Customer is a party; (ii) infringe the Intellectual Property Rights, privacy rights or other legal rights of any third party; or (iii) give rise to any cause of action against Adgorithms in each case in any jurisdiction and under any applicable law.
7.4.2. To the extent Adgorithms processes any Personal Information on Customer’s behalf when performing its obligations under this Terms, Customer shall be deemed the data controller and Adgorithms shall be deemed a data processor, and in any such case: (i) Customer will collect, use, transfer and otherwise process any Personal Information collected by or through the Platform and the Hosted Services in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments, including but not limited to the data protection laws and employment laws; (ii) Customer shall be responsible for providing appropriate information and obtaining any required consent from End Users, including notice and consent allowing it to own, control and transfer all Personal Information that is provided by End Users; and (iii) Customer have provided such information and obtained such consent to any processing of Personal Information by and through the Platform and Hosted Services in accordance with any and all applicable laws.
7.4.3. Customer shall ensure that each of its websites and/or mobile applications contains a privacy policy that: (a) discloses the usage of third-party technology and the data collection and usage resulting from the Platform and Hosted Services; (b) contains a conspicuous live hyperlink to an opt-out website that provides the End User the ability to opt out of interest-based advertising through the Platform and Hosted Services; and (c) complies with all applicable privacy laws, rules and regulation. To the extent required by applicable law, rule or regulation, Customer shall provide Adgorithms, with respect to the provision of the Hosted Services, a copy of Customer’s privacy policy consistent with the foregoing requirements.
7.4.4. The Parties agree that with respect to all Data, it shall be the responsibility of the Customer to devise, safeguard, transfer, share and use the Data in compliance with applicable laws and regulations, including without limitation, any privacy and data protection laws and regulation in connection with the communication of commercial advertisements (including the CAN-SPAM Act, 2003 and any applicable similar laws and regulation).
8. Intellectual Property

8.1. As between the Parties, all right, title and interest in and to the Hosted Service, including the Platform, the Hosted Services Specifications, the Documentation or any part of any of the foregoing, including associated Intellectual Property Rights, evidenced by or embodied in and/or attached, connected, or related to the any of the foregoing, from the moment of its creation, are and will remain the sole and exclusive ownership of Adgorithms (“Adgorithms’ Intellectual Property”). Other than the right to use the Services as provided hereunder, these Terms do not convey any right, title or interest in and to the Adgorithms’ Intellectual Property.
8.2. Any Updates, Upgrades, improvements, modifications, adaptations, derivatives or enhancements made to Adgorithms’ Intellectual Property, or to any part thereof, or other work which includes, contains, substitutes, emulates, exposes the functionalities, or incorporates Adgorithms’ Intellectual Property or any part thereof, made by the Customer, Adgorithms or jointly by the Customer and Adgorithms, shall be solely owned by Adgorithms.
8.3. Customer hereby undertakes not to: (i) represent that it possess any proprietary interest in the Platform or related Documentation; (ii) remove or delete any and all copyright notices, restrictions and signs indicating proprietary rights of Adgorithms, including copyright mark [©] or trademark [® or ™] contained in or accompanying the Hosted Service and/or Platform; and (iii) use the term “Adgorithms”, “Albert” or any of Adgorithms’ brands, service marks or trademarks in any editorial, review, or commercial communications with third parties, including, but not limited to, any advertisement, Ad Creative or domain name registrations, without the express prior written approval from Adgorithms.
8.4. Without derogating from the foregoing, Customer hereby assigns and transfers to Adgorithms, without additional consideration, any right, title and interest that Customer may have in, and to, any and all intellectual property created, authored, made, developed, conceived or reduced to practice in relation to the Platform and/or the Hosted Service (“Creations”), and hereby waives all past, present and future claims relating to any moral rights, artists’ rights, or any other similar Intellectual Property Rights worldwide in or to such Creations.
8.5. In the event Customer provides Adgorithms with any suggestions, comments or other feedback (“Feedback”) relating to the Hosted Services or the Platform, whether such Feedback is provided prior to, on or after the Effective Date, such Feedback shall become the sole and exclusive property of Adgorithms, and Customer hereby irrevocably assigns to Adgorithms all of its right, title and interest in and to such Feedback.
9. Confidentiality

9.1. Neither Party shall disclose any Confidential Information to any third party other than to its Personnel, employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed, under an executed agreement, to keep such information confidential in the same or a substantially similar manner as provided for in these Terms. Neither Party will use any Confidential Information except as expressly permitted by, or as required to achieve the purposes of, these Terms. Each Party will take reasonable security precautions to protect and safeguard the Confidential Information of the Disclosing Party against any unauthorized use, disclosure, transfer or publication, with at least the same degree of care and precaution as it uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care.
9.2. Either Party shall notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or breach of these Terms. The Disclosing Party will comply with any protective order or equivalent relating to the Confidential Information. In the event such a protective order is not obtained, the Disclosing Party will use its reasonable best efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law is disclosed. The Parties agree that monetary damages for breach of confidentiality under this section may not be adequate and the non-breaching Party shall be further entitled to injunctive relief.
9.3. The Parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and agree that the non-breaching Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
9.4. The provisions of this Section 9 shall continue in force for a period of five (5) years following the termination or expiration of these Terms, and any Confidential Information which constitutes a trade secret shall survive indefinitely.
10. Representations and Warranties

10.1. Mutual Representations and Warranties. Each Party hereby represents, warrants, and undertakes to the other Party that: (i) such Party has the required power and authority to enter into these Terms; (ii) the execution of these Terms and performance of its obligations thereunder do not and will not, to the best of its knowledge, violate any other agreement to which it is a party; (iii) there is no other restriction, limitation, contractual or statutory obligation, including regarding the creation and marketing of online materials and Ad Creatives, which prevents a Party from fulfilling its obligations under these Terms; (iv) these Terms constitutes a legal, valid and binding obligation when signed by both Parties.
10.2. Adgorithms’ Representations and Warranties. Adgorithms hereby represents and warrants to the Customer that: (i) it will has all necessary rights, licenses, know-how, expertise and experience to provide the Services under these Terms; (ii) it exclusively owns or is the licensee of the Platform and the Intellectual Property Rights therein and has the full legal rights, licenses and authority to provide the Services to Customer, as provided herein; (iii) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification; and (iv) (v) the Platform will incorporate security features reflecting the requirements of good industry practice; and (vii) the Hosted Services and the Platform, when used by the Customer in accordance with these Terms, shall materially comply with all applicable laws and regulations applicable to its business and/or the use of the Hosted Service and the Platform. Notwithstanding anything to the contrary in these Terms, Adgorithms will have no liability or other responsibility with respect to the Data, the Ad Creative or Customer’s website.
10.3. Customer’s Representations and Warranties. In addition to Section 7.4.1, Customer hereby represents, warrants and undertakes that: (i) it shall use the Hosted Services and the Platform solely for the Permitted Purposes as contemplated by these Terms, and shall not interfere with the integrity or performance of the Hosted Services and the Platform or the data contained therein or attempt to gain unauthorized access to the Platform; (ii) it shall make every effort to uphold the highest ethical and commercial standards, and comply with all applicable laws and regulations applicable to its business and/or the use of the Hosted Service and the Platform, including data protection, anti-SPAM, and privacy laws and regulations; (iii) none of the Ad Creatives and none of Customer’s websites to which an End User is directed following a click on any advertisement will contain any obscene, defamatory, infringing, illegal, deceptive, pornographic, gambling–related or hateful content; (iv) the Ad Creatives will be free of any “virus”, “Trojan Horse”, “worm”, “disabling”, “lock out” or any other malicious code as such terms are understood in the computer industry; (v) no Ad Creative will be used for any website or online service directed to children under the age of 13 nor shall any Personal Information about or relating to an individual under the age of 13 be transmitted to Adgorithms; (vi) it shall deliver the Ad Creatives in accordance with the Acceptable Ad Creative and Content Policy; (vii) it is solely responsible for the Data, the Customer’s website and/or the Ad Creatives and the consequences of using, advertising, publishing, promoting, and/or distributing them via the Hosted Service and on the Platform, except if such consequences are a direct result of a wrongful or intentional act or omission by Adgorithms; and (viii) the Ad Creatives and/or Data is (and will continue to be throughout the Term) true, accurate, complete, and non-infringing upon any third party rights, including Intellectual Property Rights and privacy rights; and (ix) has obtained, and be deemed to have hereby granted to Adgorithms, all rights necessary to authorize Adgorithms to store, audit, optimize and serve Ad Creatives and otherwise provide the Hosted Services and the Platform to Customer hereunder; and (x) it shall not knowingly or purposely use, merge or otherwise make available to the Platform any Personal Information provided by an End User or other third party in a manner which violates applicable law, or any legal right of the End User or third party regarding the use and/or disclosure of their Personal Information conferred by the then-current privacy policy on either party’s websites.
11. Disclaimer of Warranties

11.1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ADGORITHMS DOES NOT WARRANT OR MAKEANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE HOSTED SERVICES, THE PLATFORM OR ANY PART THEREOF. THE SERVICES, THE PLATFORM (AND ANY PART THEREOF), INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, MATERIALS, REPORTS AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY REPRESENTATIONS OR WARRANTIES AS TO THE USABILITY, ACCURACY, QUALITY, AVAILABILITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, SECURITY OR EFFECTIVENESS OF ANY CONTENT, DATA, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED BY ADGORITHMS AND/OR CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE PLATFORM AND THE HOSTED SERVICES. ADGORITHMS DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT CUSTOMER OR ANY THIRD PARTIES SHALL RECEIVE FROM THE PLATFORM AND/OR THE HOSTED SERVICE.
11.2. ADGORITHMS DOES NOT ENDORSE ANY ENTITY, PRODUCT OR SERVICE MENTIONED ON THE PLATFORM, INCLUDING ANY ADVERTISEMENTS AND/OR DATA. EXCEPT AS EXPRESSLY STATED OTHERWISE UNDER THESE TERMS, ADGORITHMS DOES NOT AND CANNOT WARRANT THAT THE OPERATION OF THE HOSTED SERVICE AND/OR THE PLATFORM IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS. ADGORITHMS MAY, AT ITS SOLE DISCRETION, CORRECT, MODIFY, AMEND, ENHANCE , IMPROVE AND MAKE ANY OTHER CHANGES TO THE HOSTED SERVICE AND/OR THE PLATFORM AT ANY TIME WITHOUT ANY NOTICE TO CUSTOMER.
12. Limitation of Liability

12.1. Aggregate Liability. IN NO EVENT WILL ADGORITHMS’ AGGREGATE LIABILITY FOR ANY ANDALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OR ANY SERVICES (WHETHER IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE) EXCEED THE AGGREGATE FEES ACTUALLY PAID BY CUSTOMER TO ADGORITHMS UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION ARISES.
12.2. Indirect Damages. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT OR LOSS RESULTING FROM BUSINESS INTERRUPTION OR LOSS OF DATA, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY DELAY, LOSS OR DAMAGE ATTRIBUTABLE TO ANY SERVICE, PRODUCT OR ACTION OF ANY PERSON OTHER THAN ITS OWN AND ITS EMPLOYEES.
12.3. Customer Liability. Customer warrants that it is a business user and not an individual consumer. It accepts full and sole responsibility for developing and implementing a satisfactory full data backup and a disaster recovery capability facilitating complete data recovery including restoration or reconstruction of all lost or altered files data or programs, and the security of all its Confidential Information, Data and all Personal Information.
12.4. Customer Acknowledgement. Customer acknowledges that the purchase of media is performed by Adgorithms using Adgorithms’ proprietary Platform and that the Service is performed via the Platform automatically, based, inter alia, on the specifications and criteria provided by the Customer. As such, Customer shall have no claim against Adgorithms in connection with, the choice, type and placement of media purchased using the Platform and/or the expenses and costs paid or payable by Adgorithms for the purchase of media using the Platform in accordance with the specifications and criteria provided by the Customer.
13. Indemnification

13.1. Customer shall defend, indemnify and hold harmless Adgorithms and its officers, directors, shareholder, employees, affiliates and agents (the “Adgorithms Indemnitee”) from and against all costs, damages, losses and expenses, including reasonable attorneys’ fees and other legal expenses, arising from any third-party claim that: (i) the Data, Ad Creatives, Customer’s website, or other content violates any third party rights, including without limitation, infringement or violation of the Intellectual Property Rights or privacy rights of such third party; (ii) the Data, Ad Creatives or other content are obscene, defamatory, illegal, unethical, or promote illegal behavior; and/or (iii) that Customer failed to obtain any necessary permit, license or consent in connection with these Terms, including the Data; and/or (vii) Customer’s violation or alleged violation of any of its warranties and/or obligations under these Terms.
13.2. Adgorithms shall defend, indemnify and hold harmless Customer and its officers, directors, shareholder, employees, affiliates and agents (the “Customer Indemnitee”) from and against all costs, damages, losses and expenses, including reasonable attorneys’ fees and other legal expenses, arising from any third-party claim that the Hosted Services and/or the Platform violate any third party Intellectual Property Rights or privacy rights.
13.3. As a condition to the defense and indemnity set forth above, the Adgorithms Indemnitee or the Customer Indemnitee, as applicable (the “Indemnified Party”) shall give the other Party (the “Indemnifying Party”) prompt notice of any such claim made against it and the Indemnifying Party shall be entitled, by written notice to such Indemnified Party, to assume sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof (collectively, “Claim”), at its own expense, provided that (a) no settlement, consent order or consent judgment which involves any placement of a financial burden or admission of any liability or wrongdoing, act or omission on the part of the Indemnified Party may be agreed to by the Indemnifying Party without the Indemnified Party’s prior written consent; and (b) the Indemnifying Party shall keep the Indemnified Party informed of the status and progress of such Claim, the defense thereof and/or settlement negotiations with respect thereto. The Indemnified Party shall give the Indemnifying Party all reasonable assistance, at Indemnifying Party’s cost and expense, necessary in connection with such defense. The Indemnified Party shall have the right to employ separate counsel in the defense of any such claim and participate in the defense thereof.
14. Term and Termination

14.1. Term. These Terms shall commence as of the Commencement Date set forth under the Service Order Form,and will continue for the period set forth under the Service Order Form executed pursuant hereto, unless terminated earlier as provided in these Terms or the Service Order Form.
14.2. Termination for Breach. If either Party materially breaches these Terms, the non-breaching Party may terminate these Terms upon provision of written notice to the other Party, provided that the breaching Party has failed to cure such breach within thirty (30) days following its receipt of such notice. Adgorithms may terminate these Terms immediately in its sole discretion upon Customer’s breach of Sections 6, 7, 8 or 9 of these Terms.
14.3. Termination for Bankruptcy. Either Party may terminate these Terms in its entirety if the other Party (a) becomes insolvent or is unable to meet its debts as they mature, (b) files a voluntary petition in bankruptcy or seeks reorganization or to effect a plan or other arrangement with creditors, (c) applies for, consents to or acquiesces in the appointment of any receiver or trustee for all or a substantial part of its property, or if any such receiver or trustee is appointed and not discharged within thirty (30) days after the date of such appointment.
14.4. Effects of Termination. Upon expiration or termination of these Terms for any reason, (i) all rights and licenses granted herein, and any Service Order Form executed pursuant hereof, shall terminate immediately; (ii) each Party shall promptly return to the other Party, or destroy and certify the destruction of, all Confidential Information (as defined below) to the other Party; (iii) Customer shall immediately cease to use the Hosted Services and shall purge from its systems any traces of the Platform; (iv) Customer shall remit in full all payments due to Adgorithms according to these Terms and all Service Order Forms pursuant thereto (and in the event of termination by Adgorithms, only such payments accruing prior to the date thereof), and following such final payment, neither Party will be entitled to receive any payment from the other Party; (v) the following provisions shall survive the expiration or termination of these Terms: 1, 7.1.2, 7.2.1, 8, 9, 10, 11, 12, 13, 14.4 and 15 and all other performance obligations of both Parties under this Terms shall cease.
15 Miscellaneous Provisions

15.1. Governing Law and Jurisdiction. Notwithstanding anything to the contrary, the Parties agree that their engagement hereunder shall be governed by (i) the laws of England and Wales in the event the Customer is incorporated in Europe, or (ii) the laws of the state of New York in the event the Customer is incorporated in USA, or (iii) the laws of the state of Israel in any other event, without reference to its conflict of law principles. Respectively, any and all controversies, claims or disputes arising out of, or related, to these Terms or the interpretation, performance or breach thereof, shall be brought before the exclusive jurisdiction of the competent courts located in (i) London, England (ii) New York, NY, or (iii) Tel-Aviv, Israel.
15.2. Assignment. Neither Party may assign or transfer any rights or delegate any duties under these Terms without the other Party’s prior written consent, except that Adgorithms may assign or transfer these Terms and any Service Order Form in connection with a sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this section shall be void.
15.3. Entire Agreement; Waiver. These Terms together with the Services Order Form executed by Customer constitute the entire agreement between the Parties and supersedes any prior understandings or discussions relating to the subject matter of these Terms. These Terms in their form on the Commencement Date may be amended, modified or supplemented only by a writing that is signed by duly authorized representatives of both parties. No failure or delay on the part of either Party in exercising any right or remedy under these Terms will operate as a waiver, nor will any single or partial exercise of any such right or remedy preclude any exercise of any other right or remedy.
15.4. Counterparts. These Terms may be executed in multiple counterparts, and each such duly signed counterpart, including all schedules thereto, shall be deemed to be an original of these Terms and all of which taken together shall constitute but one and the same document, provided however that each Party shall receive a counterpart fully signed by the other Party.
15.5. Independent Contractor. Each Party is an independent contractor with respect to the other Party hereunder. These Terms shall not be construed to: (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the Parties; or (ii) authorize any Party to enter into any commitment or agreement binding on the other Party.
15.6. Force Majeure. Neither Party shall be liable under these Terms because of a failure or delay in performing its obligations hereunder on account of riots, insurrection, fires, floods, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such Party.
15.7. Enforceability. If any portion of these Terms is determined to be or becomes unenforceable or illegal, then such portion shall be reformed or eliminated to the minimum extent necessary for these Terms to be enforceable and legal, and these Terms shall remain in effect in accordance with its provisions as modified by such reformation or elimination.
15.8. Notices. All notices and requests required or authorized hereunder, shall, expect where specifically provided otherwise, be given either in writing by personnel delivery to the Party to whom notice is to be given, or sent by registered mail, addressed to the Party intended and its address set forth in these Terms or by telex, cable, or facsimile. The date of delivery, telex, cable, or facsimile in the case of personnel delivery or the date upon which it is deposited in the mail in the case of notice by mail, shall be deemed to be the date of such notice.
15.9. Publicity. Neither Party will issue any press releases or make any public statements regarding these Terms without the other Party’s prior written consent, however each Party shall be allowed to indicate the other Party as its customer or supplier (as applicable) in its website or commercial materials. Notwithstanding anything to the contrary hereunder, this Agreement and its Terms are Adgorithms’ Confidential Information and therefore will be treated as such.
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