TABOOLA TERMS AND CONDITIONS AND ACCEPTABLE USE POLICY
These Terms and Conditions/Acceptable Use Policy (this “Agreement”) set 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 any applicable insertion order(s) entered into by Taboola and Publisher that reference this Agreement (the “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 shall be referred to herein as the “Service.”
1. Grant of Rights: Taboola grants Publisher the right during the Term (as defined in the applicable Order) to place the Widget on the Websites (each, a “Placement”) as described in Appendix A 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 Section 3 of the Order 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: (a) in a location other than the one specified in Section 3 of the Order; (b) on any article page that uses pagination, fly-outs, interstitials, multimedia module or that refreshes the Widget with each page view; or (c) 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. Publisher (a) grants Taboola the right during the Term to interact with the Widget on the Websites for the purposes of developing and serving Recommendations to Visitors, and (b) agrees not to take any action that might impede Taboola’s provision of the Service. Publisher agrees to maintain each Placement throughout the Term and 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 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. 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.
3. 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 Order. 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. Payments shall be remitted to Publisher in New Israeli Shequels (NIS), at the rate of exchange applicable as of the last date of the calendar month for which payment is made, Each payment shall be accompanied by VAT, at the rate prescribed by law, if applicable; provided that should Taboola be required to withhold from payments or make payments of any VAT amount or any and all amounts as may be required from time to time to be deducted at source under any Israeli tax law or regulation, Taboola shall do so and provide Publisher with documentation relating to such tax withholding and/or payment, and Publisher shall have no demands in connection therewith. Any such amounts shall be deemed to have been paid to Publisher on their due dates, subject to receipt of sufficient evidence of their withholding and/or payment. Subject to the above, each party will be responsible for paying its own taxes.
4. Compensation Definitions: 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. “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 shall include, without limitation, the total amount of credit card processing fees, bad debt, charge-backs, deductions, reversals, or credits and refunds to Advertisers.
5. 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, BroadSpring) to make recommendations on the Websites or provide 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. Taboola Representations and Warranties: Taboola represents and warrants that the Taboola 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.
8. Ownership: Taboola owns all intellectual property rights in the Widget and Service. Publisher owns all intellectual property rights in the Website(s) and Publisher Materials.
(a) Except for that which Publisher indemnifies Taboola, Taboola shall indemnify, defend, save and hold harmless Publisher and its parent and subsidiaries, and its and their officers, directors, agents, affiliates, and employees, from and against any and all third-party claims, damages, awards, judgments, and liabilities (including reasonable outside attorneys’ fees and costs) (“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 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 the Service or Widget with Publisher Materials.
(b) Publisher shall indemnify, defend, save and hold harmless Taboola and its parent and subsidiaries, and its and their officers, directors, agents, affiliates, 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, or (ii) a claim that the Websites or any of its content (including all 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.
10. 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.
11. 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, provided that the party required to make such a disclosure gives reasonable notice to the other party so that it may contest such order. “Confidential Information” consists of (a) any technical information or plans concerning the Service, Widget or any software or other technology of Taboola; (b) any other information disclosed by one party to the other party that is marked as confidential; 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 without restriction on use or disclosure.
12. Choice of Law: This Agreement will be governed by and construed in accordance with the laws of the State of Israel excluding its conflicts of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the courts located in the city of Tel-Aviv and the parties hereby irrevocably consent to personal jurisdiction and venue therein.
13. Assignment: The rights and obligations of each party hereunder shall inure to the benefit of the respective successors 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.
14. 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.
15. Miscellaneous: This Agreement, together with any applicable Order, 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. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. Paragraphs 6-12 and 15 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.