TABOOLA PUBLISHER TERMS AND CONDITIONS

The applicable Order when signed by Publisher, together with these terms (collectively, “Agreement”) sets forth the terms and conditions under which: (a) Publisher shall place a widget provided by Taboola (the “Widget”) on the Websites listed in Section 2 of the applicable Order (the “Website(s)”) and shall permit Taboola to utilize information provided to it by the Widget in order to make recommendations (“Recommendations”) regarding: (i) videos and other content owned by or licensed to Publisher (the “Publisher Material”) and (ii) videos and other content supplied by third parties (“Taboola Sponsored Content”) to Website visitors (“Visitors”); and (b) Taboola shall share with Publisher the revenues that Taboola receives from third-party advertisers (“Advertisers”) as compensation for Visitors clicking on Recommendations in order to view Taboola Sponsored Content.  Taboola’s provision of Recommendations to Visitors via the Widget shall be referred to herein as the “Service.”

1.       Grant of Rights: 

1. Taboola grants Publisher the right during the Term (as defined in the applicable Order) to place the Widget on the Websites as specifically described in Appendix A (each, a “Placement”) and to display Recommendations to Visitors. Publisher agrees that the Widget will be placed on all Website article pages in the location and in conjunction with the same elements specified and shown in Appendix A throughout the Term. Publisher understands and agrees that it will not launch the Widget unless the location, display and user interface of the Widget have been approved by Taboola in writing. Publisher further agrees that it will notify Taboola in writing if it intends to place the Widget: (i) in a location other than the one shown in Appendix A; (ii) on any article page that uses pagination, fly-outs, interstitials, multimedia module or that refreshes the Widget with each page view; or (iii) a non-article page (e.g. a gallery or slideshow page), so that Taboola can approve each such location and provide Publisher with specific code for all such other locations or pages.
2. Publisher grants Taboola the right during the Term (i) to interact with the Widget on the Websites for the purposes of developing and serving Recommendations to Visitors; and (ii) to use Publisher’s name and logo when referring to Taboola’s customers in Taboola marketing materials.   Publisher further agrees (i)  not to take any action that might impede Taboola’s provision of the Service; (ii) to maintain each Placement throughout the Term; and (iii) to comply with the Federal Trade Commission’s Disclosure Guidelines by including an attribution to Taboola in a form that has either been provided by Taboola or approved by Taboola (the “Taboola Attribution”) (for clarity, Taboola shall have the right to immediately remove the Widget from Publisher’s Website(s) if Publisher fails to include the Taboola Attribution).  In addition, Publisher agrees that in order to facilitate maintenance and optimization of the Service, Taboola may at any time during the Term conduct tests on how Visitors interact with the Website or Publisher Material and Taboola Sponsored Content.  Publisher acknowledges that in the event it chooses to have Taboola recommend Publisher Material, the Widget will need to rely upon Publisher’s embedded video player to play Publisher Material that shall be streamed directly from Publisher’s servers in response to Visitors’ selections.  Accordingly, in such event, the parties shall cooperate in good faith to ensure proper interoperability between the Widget and Publisher’s video player. Without limiting the foregoing, Publisher shall: (i) permit Taboola to access Publisher’s Material for indexing and other purposes related to provision of the Service, by providing Taboola with a Media RSS feed or, with Publisher’s approval, credentials that shall permit Taboola to access Publisher’s Material management system, and (ii) place an action script code snippet provided by Taboola in Publisher’s video player that will allow Taboola to track video views and to generate playlists on the Widget.

2.      Taboola Newsroom: Taboola agrees to make its editorial homepage optimization tool (“Taboola Newsroom”) available to Publisher through its “Backstage” platform during the Term at no additional cost to Publisher.

3.      Acceptable Use Policy:  Publisher agrees that it will not, either by itself or by authorizing or encouraging others to do so, directly or indirectly: (a) use, post or promote the Widget or any Recommendations in association with any material or content which is, or which may be reasonably considered to be illegal, unlawful or infringing under any applicable laws, pornographic, obscene, promotional of illicit drugs and drug paraphernalia, gambling-related, weapon or ammunition-related, violent, libelous, defamatory, indecent, seditious, offensive, invasive to privacy, abusive, threatening, harmful, vulgar, possibly capable of inciting racial hatred, discriminatory (racially, ethnically or otherwise), in breach of confidence or any other right of any third party, or lacking in necessary authorizations, approvals, consents or licenses; (b) engage in any action or practice that disparages or devalues Taboola, the Widget, the Taboola Sponsored Content, or the reliability, reputation or goodwill of any of them; (c) modify, change, edit, amend, truncate, alter, bypass or reorder any aspect of the Widget or Recommendations; (d) generate clicks on Recommendations, or generate Recommendation Pageviews, through any automated, deceptive, fraudulent or other means that is designed to generate clicks or Recommendation Pageviews that are not the willing actions of human end users who possess an independent, genuine desire to engage with the content that appears on the relevant page(s), including but not limited to, through (i) repeated manual clicks, use of robots or other automated tools or computer generated requests, (ii) participation in pay-per-click programs, (iii) redirection of search requests to pages that do not contain content reasonably relevant to the search query, or (iv) the provision of consideration to any third party in exchange for the third party causing any Clicks or Recommendation Pageviews to occur;  (e) copy, crawl, index, cache or store any information derived by Taboola, or contained in or concerning a Recommendation; or (f) provide Taboola any personally identifiable information concerning any Visitor or other person (“PII”).  Clause (d) of the previous sentence shall be deemed to have been violated by any Recommendation Pageviews that Taboola reasonably determines were the result of transfers or referrals of Visitors to a Website by a third party content distribution service provider and that resulted in a monthly click-through rate that was less than fifty percent (50%) of the click-through rate experienced by the remainder of the Recommendation Pageviews that occurred on the Website during the same month.  A “Recommendation Pageview” shall be deemed to have occurred each time the Widget is loaded to a Website article page, as determined by Taboola and reported on Taboola’s analytic dashboard. A “Recommendation Pageview” shall be deemed to have occurred each time the Widget is loaded to a Website article page, as determined by Taboola and reported on Taboola’s analytic dashboard.  Notwithstanding anything to the contrary herein, Taboola shall have the right to immediately terminate this Agreement without prior notice to Publisher and to remove the Widget from Publisher’s Website(s) in the event of Publisher’s violation of the foregoing Acceptable Use Policy.

4.      Compensation:  Publisher’s sole compensation for its grants of rights and other undertakings under this Agreement shall be to receive, with respect to each month of the Term, the Compensation set forth in Section 4 of the applicable Order.  It is understood and agreed that Publisher shall not be entitled to payment of Compensation for Recommendation Pageviews or clicks generated in violation of subparagraph (d) of Taboola’s Acceptable Use Policy as set forth above.  All payments shall be remitted to Publisher in U.S. dollars within forty-five (45) days after the end of the calendar month in which that revenue was generated, provided that Publisher has registered with Taboola’s payment services company, Payoneer.  Each party will be responsible for paying its own taxes.

5.      Compensation Definitions: “Adjusted Gross Revenue” shall consist of all advertising fees paid by Advertisers to Taboola for placement of advertising on Publisher’s Website(s), net of any applicable taxes thereon (“Gross Revenue”), minus processing fees of up to 10% of Gross Revenue, which may include, without limitation, the total amount of credit card processing fees, bad debt, charge-backs, deductions, reversals, or credits and refunds to Advertisers.  “Desktop” shall mean stationary computing equipment or a hinged portable laptop device (e.g. tower or mini tower case devices, laptops, or notebook computers). “Mobile” shall mean handheld portable computing devices with a screen diagonal measurement up to 6 inches, normally including a phone and/or camera capability (e.g. Apple iPhone or Android phone computing devices). “Tablet” shall mean handheld flat screened, portable, non-hinged devices with a screen diagonal measurement of greater than 6 inches (e.g. iPad, iPad mini, Galaxy tablets, and Microsoft Surface). The final metric regarding the definitions of Desktop, Mobile and Tablet will be the user agent device ID, recognized and tabulated uniformly by Taboola’s Backstage platform for all Taboola clients.

6.      Exclusivity:  Publisher and Taboola understand and agree that Taboola will be the exclusive Service provider during the Term and Publisher agrees that it will not engage any third party, including without limitation, any of Taboola’s competitors (e.g., AdBlade, Outbrain, Crowdignite, Gravity, NRelate, ZergNet, Media.net, and BroadSpring) to make recommendations on the Websites or provide a service that is similar to the Service provided by Taboola.  For clarity, Publisher agrees that any services or recommendations provided by a third party or competitor of Taboola prior to the Effective Date will be replaced by Taboola’s Service and Widget on or before the Effective Date.

7.      Publisher Representations and Warranties:  Publisher represents and warrants that (i) it owns and operates the Websites, (ii) the Publisher Material and Website content is either owned by Publisher or properly licensed, (iii) it has the full right and authority to grant the rights granted hereunder, (iv) the Website content, Publisher Material and Taboola’s use of any Publisher Material will not infringe upon the rights of any third party; and (v) it will comply with Taboola’s above Acceptable Use Policy  and Privacy Policy.

8.      Taboola Representations and Warranties:  Taboola represents and warrants that the Widget will be provided in accordance with the specifications set forth herein. THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY TABOOLA. TABOOLA PROVIDES THE SERVICE “AS IS.”  TABOOLA EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

9.      Ownership:  As between the parties, Taboola owns all intellectual property rights in the Widget and Service and Publisher owns all intellectual property rights in the Website(s) and Publisher Materials.

10.    Indemnification:

(a)  Except for that which Publisher indemnifies Taboola, Taboola shall indemnify, defend, save and hold harmless Publisher and its parent, subsidiaries and affiliates, and its and their representatives officers, directors, agents, and employees, from and against any and all third-party claims, damages, fines, penalties, awards, judgments, and liabilities (including reasonable outside attorneys’ fees and costs) (collectively, “Losses”) resulting from, arising out, of or related to: (i) Taboola’s breach or alleged breach of any of Taboola’s representations or warranties set forth in paragraph 8, 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 the Widget with Publisher Materials.

(b) Publisher shall indemnify, defend, save and hold harmless Taboola and its parent, subsidiaries and affiliates, and its and their representatives, officers, directors, agents, and employees, from and against all Losses resulting from, arising out, of or related to (i) Publisher’s breach or alleged breach of any of Publisher’s representations, warranties or agreements herein, or (ii) a claim that the Websites or any of its content or the Publisher Material violates a third party trademark, trade secret, copyright, patent or privacy right.

(c)  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 defense (except that the Claimant may, at its own expense, assist in the defense); and (iii) provide the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense 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.

11.    Limitation of Liability:  IN NO EVENT SHALL (A) TABOOLA BE LIABLE TO PUBLISHER FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES; OR (B) TABOOLA’S CUMULATIVE LIABILITY HEREUNDER EXCEED THE ACTUAL AMOUNTS PAID BY TABOOLA TO PUBLISHER IN THE SIX-MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.  IN ADDITION, TABOOLA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING TABOOLA NEWSROOM AND DISCLAIMS ALL LIABILITY WITH RESPECT TO PUBLISHER’S USE OF TABOOLA NEWSROOM.

12.    Confidentiality:  Neither party will use or disclose to any third party the other party’s Confidential Information (as defined below) except as necessary for the performance 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 Service, Widget or any software or other technology of Taboola or Publisher’s Websites; (b) any 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 (c) 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.

13.    Choice of Law:  This Agreement will be governed by and construed in accordance with the laws of the State of New York excluding its conflicts of law principles.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the County of New York, New York and the parties hereby irrevocably consent to personal jurisdiction and venue therein.

14.    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 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.

15.    Taboola’s Provision of Services:  Publisher acknowledges that Taboola’s parent company, Taboola.Com Ltd., owns all intellectual property rights in and to the Widget and Service and that Taboola is just an authorized distributor of the Widget and Service.  Accordingly, Publisher understands and agrees that the Widget will be provided by Taboola.Com Ltd. and that certain other backend services will be performed by Taboola.Com Ltd., on behalf of Taboola.  Publisher 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.

16.    Publicity:  Subject to each party’s prior review and approval (which shall not be unreasonably withheld or delayed), Taboola and Publisher shall each have the right to issue a press release announcing their relationship.

17.  Force Majeure:  Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, failures of the Internet, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.

18.   Miscellaneous:  This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter.  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 authorized representative of each party.  Should any section or part of a section within this Agreement be rendered void or unenforceable by any court of competent jurisdiction, the remaining provisions of this agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted.  Paragraphs 7-13 and 18 of these Terms and Conditions shall survive the termination of this Agreement.  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.