TABOOLA TERMS AND CONDITIONS TO DIGITAL ADVERTISING INSERTION ORDER

The Digital Advertising Insertion Order attached hereto or signed from time to time by Taboola and Advertiser (the “Insertion Order”), together with these terms and conditions (collectively, “Agreement”) sets forth the terms and conditions under which: (a) Taboola shall include Advertiser’s content (“Advertiser Content”) among the content that Taboola recommends (“Recommendations”) via Taboola’s content recommendation distribution software or code (the “Widget”) to visitors to websites operated by third parties with which Taboola or its affiliates has a contractual relationship (“Taboola Publisher Websites”); and (b) Advertiser shall compensate Taboola for each Click (as defined below) on Recommendations in order to view the Advertiser Content. Taboola’s distribution of the Advertiser Content shall be referred to herein as the “Service.”

1. Grant of Rights:  Advertiser grants Taboola a limited, revocable, non-exclusive, royalty-free right and license to (a) access, index and otherwise use the Advertiser Content in order to provide Recommendations on Taboola Publisher Websites with respect to Advertiser Content until such time that the amount due to Taboola for Clicks reaches the Campaign Budget set forth in Section 2 of the Insertion Order and (b) use Advertiser’s name, logo, trademarks and any other proprietary content provided and approved for use by Advertiser, solely in connection with the making of Recommendations to Advertiser Content and for Taboola’s own marketing purposes in referring to Advertiser as a client, and subject to Advertiser’s standard trademark and content usage guidelines and quality review as provided to Taboola.  Advertiser further grants Taboola the right to write a case study regarding Advertiser’s use of the Taboola content recommendation service.  The grant of the foregoing licenses do not confer on Taboola or any other party any other “Intellectual Property Rights” with respect to Advertiser’s intellectual property.  (“Intellectual Property Rights” means all forms of proprietary rights, titles, and interests relating to patents, copyrights, trademarks, trade dresses, trade secrets, algorithms, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and all rights to apply for any of the foregoing).

Taboola grants Advertiser the right to access the Taboola Backstage Platform solely for purposes of managing its Campaign and reviewing the analytics associated with its Campaign.  Nothing herein shall be deemed as conferring any rights to Advertiser with respect to any of Taboola’s Intellectual Property Rights, including, without limitation, its rights in and to the Widget and Taboola Backstage.  Advertiser understand and agrees that if Taboola creates any custom content for Advertiser or sources images or content on behalf of Advertiser (collectively, “Custom Content”), Advertiser is responsible for obtaining all releases, reviewing any terms of use, privacy policy or other terms governing its use of Custom Content.  Taboola makes no representations and warranties with respect to the Custom Content and Advertiser use of Custom Content is at its own risk. For clarity, Taboola disclaims any and all responsibility or liability for any harm resulting from Advertiser’s use of Custom Content and Advertiser hereby irrevocably waives any claim against Taboola with respect to Custom Content.

2. Advertiser’s Content:  Taboola reserves the right within its discretion to reject or remove from any Taboola Publisher Website any Advertiser Content, software code associated with the Advertiser Content (e.g. pixels, tags, JavaScript), or website to which the Advertiser Content is linked, that does not comply with its Advertiser Guidelines or, in Taboola’s sole reasonable judgment, with any applicable law, regulation, or other judicial or administrative order or may tend to bring, disparagement, ridicule, or scorn upon Taboola. Taboola will use all Advertiser Content in compliance with these terms and conditions. Taboola agrees to use commercially reasonable efforts to promptly remove, or cause to be removed, any Advertiser Content from any Taboola Publisher Website that Advertiser deems objectionable, upon receipt of written notice from Advertiser.
3. Campaign Details:  Advertiser may change the Campaign Information (e.g., Campaign Budget, Campaign Dates) set forth in Section 2 of the attached Insertion Order, for a particular month, a portion of a month or on a going-forward basis, at any time by either (i) sending Taboola representative who has been designated as the campaign manager for Advertiser’s account (“Taboola Campaign Manager”) an email confirming the change and the period during which it shall be in effect or (ii) using the Campaign Management dashboard in Taboola Backstage.  If Advertiser relies on its designated Taboola Campaign Manager to its Campaign Details, it will only be revised upon Advertiser’s receipt of a confirmation email by Taboola’s Campaign Manager. Advertiser acknowledges and agrees that Taboola (i) does not guarantee how often it will recommend any Advertiser Content or that the number of Clicks during any period will fully exhaust Advertiser’s Campaign Budget for that period and (ii) reserves the right to pause a campaign or cap the Target Spend in any given Campaign Month in its sole discretion.  For purposes of clarity, the Campaign Budget shall be in the currency of England from time to time, unless otherwise agreed to between the parties.
4. Invoices:  Taboola shall provide Advertiser with access to its analytics platform (“Backstage”) which will provide Advertiser with details regarding the amount of Clicks on Advertiser’s Content and the amount due from Advertiser to Taboola (based on the Cost per Click indicated in Section 2 of the attached Insertion Order or as otherwise modified by Advertiser during the Campaign Month) upon the conclusion of each month that the Insertion Order is in effect (each a “Campaign Month”).  Within fourteen (14) days of the end of Campaign Month within the Insertion Order Term, Taboola shall provide to Advertiser an invoice setting out the payments due for such Campaign Month. Advertiser shall pay each such invoice within thirty (30) days after the end of the Campaign Month. Any objection to an invoice shall be stated in writing to Taboola within ten (10) days of receipt of invoice, otherwise Advertiser waives such objections and such invoice will be deemed final, not subject to dispute and accepted by Advertiser. Any late payments will accrue interest equal to one and one half percent (1.5%) per month, or the maximum amount allowable under law, whichever is less, compounded monthly.  If Taboola agrees to a written request by an Advertiser to send an invoice to a third party on Advertiser’s behalf, Advertiser agrees to remain responsible and liable for payment, and if such third party does not pay the invoice within the thirty (30) day payment period, Advertiser will immediately pay all such amounts to Taboola. Further, if Advertiser fails to make any payment as set forth herein, Advertiser will pay all reasonable expenses (including attorneys’ fees) incurred by Taboola in collecting such payments. Taboola, in its sole discretion, may require a prepayment from Advertiser before distributing Advertiser’s content until such time as Advertiser has established a credit history with Taboola.  In addition, Taboola reserves the right to require immediate payment of any outstanding amounts due if the amount due to Taboola exceeds £25,000 (or its equivalent in Euros) in any given Campaign Month or to impose a credit limit on Advertiser based on Advertiser’s credit history, application or any other factors that Taboola deems relevant.  In addition to any other rights or remedies Taboola may have, failure to pay any invoices as set forth herein may result in Taboola cancelling or pausing Advertiser’s campaign(s).   For purposes of clarity, all payments shall be made in the currency of England from time to time, unless otherwise agreed to between the parties.
5.  Reporting:  A “Click” will be considered to have occurred whenever a website visitor clicks on a Recommendation in order to view Advertiser Content.  Clicks shall be measured and reported to Advertiser on the basis of the Click data captured in Taboola’s tracking logs, which are available to Advertiser anytime on Backstage.  Taboola’s measurements are the definitive measurements under the Agreement and will be used to calculate the amounts due to Taboola hereunder.   For purposes of clarity, the Cost per Click shall be in the currency of England from time to time unless otherwise agreed to between the parties.  Advertiser shall have the option to manage its own Click data on Backstage using Taboola’s “Self-Service” feature.  Advertiser understands and agrees that Advertiser is responsible for its own actions with respect to the Campaign if Advertiser chooses to use Taboola’s Campaign Management features in Backstage.  Taboola will not review Advertiser’s activity and Taboola is not responsible or liable for any mistakes made by Advertiser in the managing of its own Campaign.   Taboola reserves the right to restrict Advertiser’s ability to edit Campaign Details in Backstage for any reason or no reason.  Taboola agrees that Advertiser, at Advertiser’s expense, shall have the right to audit Taboola’s Click reporting system, invoices and payments to verify Taboola’s compliance with the obligations contained in this Agreement.  Such audits shall be conducted by an independent third party, upon providing Taboola with no less than thirty (30) days’ notice, and shall take place no more frequently than once per any consecutive twelve (12) month period, and shall be conducted during regular business hours at Taboola’s business location and in such a manner as to not unreasonably interfere with Taboola’s normal business activities. In the event a discrepancy arises of more than fifteen percent (15%) between the number of Clicks reported in Taboola’s tracking logs and the number reported in Advertiser’s tracking logs, Taboola and Advertiser shall work together in good faith to identify the source of such discrepancy, remedy it, and, if appropriate, adjust Taboola’s prior invoicing.
6. Advertiser Warranties:  Advertiser warrants that it has all necessary rights, licences and clearances to enter into this Agreement, to grant the rights granted herein and to use the Advertiser Content as specified herein and subject to these terms and conditions, including, without limitation, the intellectual property rights therein.  Advertiser further warrants that it will comply with Taboola’s Advertiser Content Guidelines.
7. Taboola Warranties:  Taboola warrants that: (i) it possesses all of the rights and authority necessary for it to enter into this Agreement and to grant the rights granted herein; and (ii) it will perform its obligations under the Agreement with reasonable skill and care.  The foregoing warranties in this paragraph 7 are the sole and exclusive warranties made by Taboola related to this Agreement.  Except as expressly stated in the Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law. Without limiting the generality of the foregoing, Taboola does not guarantee how often it will recommend any particular Advertiser Content, or that the Clicks on Recommendations during any period will fully exhaust the Target Spend for that period or that the services provided hereunder will operate without interruption or error.
8. Ownership:  As between the parties, Taboola owns all Intellectual Property Rights in the Widget and Advertiser owns all Intellectual Property Rights in the Advertiser Content.
9. Indemnities:
   1. Except for that which Advertiser indemnifies Taboola, Taboola shall indemnify, defend, save and hold harmless Advertiser from and against any and all third-party claims, damages, fines, penalties, awards, judgments, and liabilities (“Losses”) resulting from, arising out, of or related to: (i) Taboola’s breach of any of Taboola’s warranties set forth in paragraph 7; or (ii) a claim that the Widget violates a third party trademark, trade secret, copyright or privacy right, except to the extent that such claim arises out of the combination of Taboola’s widget with Advertiser Content.
   2. Advertiser shall indemnify, defend, save and hold harmless Taboola the owners of the Taboola Publisher Websites and its and their parents, subsidiaries, affiliates, representatives, officers, directors, agents, affiliates, and employees, from and against all Losses resulting from, arising out, of or related to: (i) Advertiser’s breach or alleged breach of any of Advertiser’s representations, warranties or agreements; (ii) a claim that the Advertiser Content infringes upon, violates, or misappropriates any third party Intellectual Property Rights, or slander, defame, or libel any person, or do not comply with any applicable law or regulation, (iii) Advertiser’s failure to secure all rights, title, and interest necessary to display the Advertiser Content via the Widget; and (iv) an allegation that Advertiser or Advertiser’s Content, or products or goods being advertised in the Advertiser Content, violate any applicable law or regulation.
   3.  The parties agree that in claiming any indemnification hereunder, the Party claiming indemnification (the “Claimant”) shall: (i) promptly notify the other party in writing of the claim; (ii) grant the indemnifying party sole control of the defence (except that the Claimant may, at its own expense, assist in the defence); and (iii) provide the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defence of the claim.  In no event shall the indemnifying party enter into any settlement or agree to any disposition of the indemnified claim(s), without the prior written consent of the Claimant.
10.   Limitation and Exclusion of Liability: 

a.      This paragraph 10 prevails over all of the Agreement and sets out the entire Liability of Taboola, and the sole and exclusive remedies of Advertiser, in respect of: (a) performance, non-performance, purported performance, delay in performance or mis-performance of the Agreement or the services hereunder or of any services in connection with the Agreement; or (b) otherwise in relation to the Agreement or entering into the Agreement.

b.      Neither party shall exclude or limit its Liability for: (i) its fraud; or (ii) death or personal injury caused by its Negligence; or (iii) any other Liability which cannot be excluded or limited by applicable law.

c.      Subject to paragraph 10b, neither party shall accept and hereby excludes any Liability for Negligence other than any Liability arising pursuant to the terms of the Agreement.

d.      Subject to paragraph 10b, Taboola shall not have Liability in respect of any: (i) indirect or consequential losses, damages, costs or expenses; (ii) loss of actual or anticipated profits; (iii) loss of contracts; (iv) loss of use of money; (v) loss of anticipated savings; (vi) loss of revenue; (vii) loss of goodwill; (viii) loss of reputation; (ix) ex gratia payments; (x) loss of business; (xi) loss of operation time; (xii) loss of opportunity; or (xiii) loss of, damage to or corruption of, data; and in respect of each preceding case, whether or not such losses were reasonably foreseeable or Taboola or its agents had been advised of the possibility of Advertiser incurring such losses. Advertiser agrees agree that (ii) to (xiii) apply whether such losses are direct, indirect or consequential.

e.      Subject to paragraph 10b, the total aggregate Liability of Taboola in respect of a claim under the Agreement shall be limited to the greater of: (i) £1,000; or (ii) 110% of the total sums paid and total other sums payable, in aggregate, by Advertiser to Taboola under the Agreement in the 12 months before any claim arises.

f.       The limitation of Liability under paragraph 10e has effect in relation both to any Liability expressly provided for under the Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of the Agreement.

g.      Advertiser acknowledges and accepts that Taboola only provides the services hereunder on the express condition that Taboola will not be responsible for, nor shall it have any Liability directly or indirectly for, any act or omission of Advertiser, its affiliates or its or their employees, agents or other contractors or any third party.

h.      In this paragraph 10: (a) “Liability” means liability in or for breach of contract, Negligence, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the Agreement, including, without limitation, liability expressly provided for under the Agreement or arising by reason of the invalidity or unenforceability of any term of the Agreement (and for the purposes of this definition, all references to “Agreement” shall be deemed to include any collateral contract); and (b) “Negligence” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).

11. Confidentiality:  Neither party will use or disclose to any third party the other party’s Confidential Information except as necessary for the performance of this Agreement or to enforce the terms of this Agreement. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to a court order from a court of competent jurisdiction, provided that the party required to make such a disclosure gives reasonable prior written notice to the other party so that it may contest such order and in the event that disclosure is required, only discloses the portion of Confidential Information that its legal counsel advises is legally required.  “Confidential Information” consists of: (a) any technical information or plans concerning the Widget or any software or other technology of Taboola; (b) any financial information of the other party; (c) other information disclosed by one party to the other party that is marked as confidential; or should reasonably be assumed to be confidential under the circumstances; and (d) the content of this Agreement.  Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) is obtained by the receiving party rightfully from a third party who/that has no duty of confidentiality to the disclosing party.
12. Availability of the Service:  Taboola makes no representations regarding the availability of the Service and Advertiser acknowl-edges and agrees that the Service may be unavailable from time to time due to (i) equipment, software or service malfunctions; (ii) maintenance and update procedures or repairs; or (iii) causes beyond the control of Taboola or its affiliates, including, without limitation, interruption or failure of telecommunication or digital transmission links, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that Taboola shall not be liable for any unavailability caused by any of the foregoing. In addition, Advertiser acknowledges and agrees that Taboola and its affiliates have no responsibility or liability with respect to the operation of any third party publisher sites within the network. Advertiser is not required to provide any feedback or suggestions to Taboola.  To the extent Advertiser does provide any such feedback or suggestions, Advertiser hereby grants to Taboola and its affiliates a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and li-cense to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit all such feedback and suggestions without restriction.
13. Termination/Suspension:  Advertiser or Taboola may terminate this Agreement: (a) for convenience on seven (7) days’ written notice at any time; or (b) immediately in the event that the other party fails to remedy a material breach of this Agreement within forty-eight (48) hours of its receipt of written notice thereof.  In addition, Taboola may terminate this Agreement immediately in the event that Advertiser fails to comply with its Advertising Content Guidelines. Taboola may terminate or suspend Advertiser’s access to or use of the Service and/or terminate this Agreement at any time if: (a) in the sole discretion of Taboola, such action is necessary to prevent errors or harm to any system or network, or to limit Taboola’s or its affiliates’ liability or; (b) Advertiser attempts to access or use the Service in an unauthorized manner, including without limitation any attempt to gain access to the accounts of other Taboola customers or use the Service in a way that infringes Taboola’s, its affiliates’ or a third party’s Intellectual Property Rights.
14. Choice of Law and Jurisdiction:  The Agreement (and all non-contractual relationship arising out of or related to it) shall be governed by and construed in accordance with the laws of England.  The parties hereby submit to the exclusive jurisdiction of the English courts.
15. Assignment:  The rights and obligations of each party hereunder shall inure to the benefit of the respective successors  and assigns of the parties hereto, provided that, except as expressly provided herein, the Agreement and any rights or obligations hereunder shall not be assigned or delegated (or charged or otherwise encumbered or a trust created in respect of it or them or otherwise transferred or dealt with) without the prior written consent of the other party (which shall not be unreasonably withheld), except that, either party may assign the Agreement to an acquirer of all or substantially all of such party’s assets, whether by merger, operation of law or otherwise, without the other party’s prior written consent.
16.  Taboola’s Provision of Services:  Advertiser acknowledges that Taboola’s group companies (including, without limitation, Taboola.Com Ltd.), owns all intellectual property rights in and to the Service and any related technology and that Taboola is just a licensor and supplier of the Service and any related Technology.  Accordingly, Advertiser understands and agrees that Advertiser Content will be distributed pursuant to the Services and any related technology licensed by Taboola.Com Ltd. To Taboola and that certain other backend services will be performed by Taboola.Com Ltd., on behalf of Taboola.  Advertiser hereby consents to Taboola’s delegation of the performance of some of the Services hereunder to Taboola.Com Ltd., subject to Taboola remaining liable for the complete and correct discharge of all its responsibilities hereunder.
17. Force Majeure:  Neither Advertiser nor Taboola will be liable for delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labour disputes. If Advertiser’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond Advertiser’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Advertiser will make every reasonable effort to make payments on a timely basis to Taboola, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.
18. Miscellaneous:  This Agreement constitutes the entire agreement and understanding of the parties and supersedes and excludes all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written, with respect to the subject matter of the Agreement. Each party acknowledges and agrees that in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out in the Agreement. Nothing in the Agreement shall operate to limit or exclude any liability for fraud.  The failure of either party to enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of that party’s right.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by a duly authorised representative of each party.  No person who is not a party to this Agreement shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to this Agreement its assent to any such term. Accordingly, there are no third party beneficiaries of the Agreement who obtain any rights hereunder.  If at any time any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable, such illegality, invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. If any provision of this Agreement is so found to be invalid, illegal or unenforceable but would be valid, legal or enforceable if some part of the provision were deleted, the provision in question shall apply with such modifications as may be necessary to make it valid, legal or enforceable. If the circumstances referred to in the preceding sentence occur, the parties agree to attempt to substitute for any invalid, illegal or unenforceable provision a valid, legal or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid, illegal or unenforceable provision. Paragraphs 6-11, 14 and 18 of these terms and conditions shall survive termination of this Agreement.  Electronic signatures on this Agreement shall be deemed originals. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.