Terms and Conditions
1. DMG Software as a Service Terms and Conditions (the "Terms and Conditions") are related to and deemed incorporated into the front page signed between DSNR Media Group Ltd. ("DMG"), and the DMG applicable client, specified in said front page (the "Client" and the "Front Page", as applicable). Client's execution of a Front Page referencing these Terms and Conditions shall be deemed Client's agreement to these Terms and Conditions. In the event of any conflict between the terms of the Front Page and these Terms and Conditions, the Front Page shall prevail with respect to such conflicting terms.
2. Definitions. For purposes of these Terms and Conditions, the terms below shall have the meanings defined below. Additional terms are defined in the preamble above and throughout these Terms and Conditions.
2.1. "Client Content" means any creative, data, information, trademarks, logos, files, images, text or other content that may be provided by Client or its authorized users for use in conjunction with the Software or Services.
2.2. "SaaS Term" means the period during which the Services and access to the Software will be provided by DMG to Client, including the Initial Term and any Renewal Terms (as each is defined in Section 6 hereunder).
2.3. "Services" means the multiple landing pages serving platform and other services provided by DMG via the Software pursuant to these Terms and Conditions.
2.4. "Software" means the software specified in the Front Page.
3. Web-Based License.
3.1. DMG grants to Client, and Client accepts, a limited, nontransferable, nonexclusive and revocable license and right to access the Software via the internet and use the Software only as authorized in these Terms and Conditions, for its own purpose and operations, during the SaaS Term. Client acknowledges that its access and use of the Software will be web-based only. The Software will not be provided to Client in CD-ROM form (or any other form of media) and will not be installed on any servers or other computer equipment owned or otherwise controlled by Client. Instead, the Software will be hosted by DMG and accessed and used by Client through the use of the Internet and Client's computers.
3.2. The Software serves solely as an auxiliary tool for the management of online advertisement of Client Content, as an attempt to reach optimization of the commercial results from such advertisement. DMG exercises no control and does not guarantee any consequence, result or achievement deriving from usage of the Services, Software and/or any feature thereof, and any and all data, tool and/or information provided through or embedded in the Services and/or the Software shall be construed solely as a non binding recommendation made for the benefit of the Client. The final decision whether or not to use such recommendation shall be made by the Client. Client is aware that some of the Software modules are based on statistical analysis, therefore the Software and the use of the Services can not guarantee any definitive results or consequences, but solely provide non binding recommendations to Client.
4. Access to Services.
4.1. Subject to these Terms and Conditions, DMG will offer the Services by making the Software available for Client's use during the SaaS Term through the Internet and on Client's computer systems.DMG will provide Client with secure access to the latest supported version of the Software via the Internet using a web browser Mozilla FireFox 3.5 and above.
4.2. DMG may change, suspend or discontinue the Services at any time, including the availability of the Software, or any feature or content thereof, without notice or liability. DMG reserves the right, at its sole discretion, to refuse to allow Client to access the Services at any time.
5. Fees and Payment.
5.1. Client will pay all charges incurred in connection with the Services as specified by DMG in the Front Page, in immediately available funds or as otherwise approved by DMG, within the time period specified by DMG in the Front Page (the "Subscription Fee"). DMG reserves the right to change or retract any credit line at any time in its sole discretion. DMG and Client shall mutually agree on the method of payment and record the agreed method in the Front Page.
5.2. If payment is not made when due, DMG may charge interest at (a) the rate of 1.5% per month.
5.3. Charges shall be calculated solely based on records maintained by DMG. Refunds (if any) are at the discretion of DMG.
6.1. Initial Term; Renewal Terms. The SaaS Term will commence on the "Commencement Date" indicated in the Front Page and shall continue in effect for the period indicated in the Front Page (the "Initial Term"), unless sooner terminated by DMG as provided in these Terms and Conditions. Upon expiration of the Initial Term, the SaaS Term shall automatically renew for successive renewal terms of twelve (12) months each (each a "Renewal Term") unless sooner terminated as provided in these Terms and Conditions, or unless either party gives written notice of termination to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.
6.2. Termination for Breach. Notwithstanding Section6.1, DMG may terminate the SaaS Term as a result of a breach of these Terms and Conditions by the Client, if (a) DMG provides written notification to the Client of the breach, and (b) such material breach is not resolved within seven (7) days of notification. In the event of termination of these Terms and Conditions from any reason, Client shall not have any claim, demand or suit with respect against DMG.
6.3. Effect of Termination. In the event the SaaS Term is terminated by Client for convenience or by DMG as a result of a breach by Client prior to the completion of the Initial Term or any Renewal Term, Client shall pay DMG the remaining balance of Subscription Fees owed for the entire Initial Term or, if then in effect, the entire applicable Renewal Term. [Please approve or amend].
6.4. Both parties acknowledge that this payment represents a reasonable estimate of DMG's damages in the event of an early termination. In the event of termination of the SaaS Term for any reason, Client's access and use of the Software shall cease immediately, and the provisions of Sections 11, 13, 14, 15, 16 and 17 shall survive.
7. Clients Contents
7.1. Client hereby grants to DMG a nonexclusive, worldwide, royalty free, transferable license to use all Client Content as necessary solely for the purposes of providing the Software and Services to Client and its authorized users and to allow others to do so in connection with the Software and Services, pursuant to these Terms and Conditions.
7.2. Client Content shall be under the sole responsibility of the Client and anyone on its behalf, and DMG shall not have any responsibility and/or liability with respect to Client Content, including to any obscene, threatening, defamatory, fraudulent, infringing, harassing, or otherwise offensive material or content included in Client Content.
7.3. DMG will not systematically monitor Client Content, but DMG reserves the right to review Client Content from time to time in its discretion. DMG reserves the right to (a) disable access to or redirection to any Client Content which it determines in its sole discretion (such discretion to be exercised in good faith) to be illegal, obscene, threatening, defamatory, fraudulent, infringing, harassing, or otherwise offensive, and (b) disable access to or redirection to any other Client Content under justified exigent circumstances, as such circumstances are determined in good faith by DMG. DMG agrees to notify Client in cases where it disable access to or delete any other Client Content and shall use good faith efforts to determine an appropriate alternative or work-around solution.
8.1. Client shall not, and shall not allow any third party to: (i) generate automated, fraudulent or otherwise invalid impressions or inquiries or conceal conversions by using methods including but not limited to the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software; (ii) include in the Client Content advertise substances, services, products or materials which contravene applicable laws and regulations in any country in which Client's ads are displayed, placed or otherwise made available; (v) engage in any other illegal or fraudulent business practice under the laws of any state or country where an ad is made available.
DMG will provide online, telephone and e-mail support to Client during the SaaS Term according to DMG's SaaS customary practice, based on its sole consideration. Any action or conduct of the Client, based on the support services shall be performed under Client sole responsibility.
10. Client Responsibilities.
10.1. Client shall be responsible for its own use of the Services and/or Software (and for anyone on its behalf use thereof) and for any business, commercial and legal consequence, result or decision it shall take, based upon the Services.
10.2. Client shall be responsible for ensuring that any Client Content is accurate, not corrupt in any way, and does not contain any viruses.
10.3. Client will retain responsibility for administering security within the DMG applications and Services. Client is responsible for providing users network access to the Software. Client is also responsible for ensuring that its users comply with these Terms and Conditions with respect to use of the Software and Services.
10.4. DMG shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by Client in accessing the Internet to access the Software. Client shall provide accurate input information in the manner reasonably prescribed by DMG in connection with the Software and Services provided under these Terms and Conditions.
10.5. Client shall advise DMG of any changes to Client's operations, banking relationships, or other information that would require a change in the support, operation, or configuration of the hosted Software, or the Services.
11.1. Client agrees that the Software, User Documentation and Services are proprietary products and services and that all right, title and interest in and to the Software, User Documentation and Services, including all associated intellectual property rights, are and shall at all times remain with DMG and its third party licensors.
11.2. The Software and Services contain trade secret and proprietary information owned by DMG or its third party licensors and is protected, inter alia, by pending patents applications and by copyright laws and international trade provisions. Client must treat the Software like any other copyrighted material and Client may not copy or distribute the Software electronically or otherwise, for any purpose.
11.3. Any expression or result of DMG's Services, such as findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, software (object code only), and other technical information (collectively "Work Product") created by DMG in the course of performing the Services hereunder are the property of DMG and are licensed to Client, without further license fees, pursuant to the license in these Terms and Conditions, provided, however, that Work Product does not include, and Client shall retain title to (i) Confidential Information of Client, (ii) all Client Content, including without limitation all proprietary rights of Client. Client shall have no right to sublicense, transfer, assign, convey or permit any third party to use or copy any Work Product.
12. Other Restrictions.
12.1. Use of the Software and Services is restricted to use by the specific licensing entity only, and only for Client's internal business purposes, provided that in the event Client is an online advertisement agency, a license to use the Software and Services is hereby granted to its clients applying for its service in the online advertisement field, as long as these Terms and Conditions are valid. Client may not use the Software for the benefit of any third parties (except as abovementioned) or provide service bureau or other access or use of the Software to third parties.
12.2. Client may not, directly or indirectly, sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the Software or the Services (including without limitation any capacity) or any portion thereof, to any third party (except as mentioned under Section 12.1 above), and any attempt to do so is null and void.
12.3. Client may not reverse engineer, disassemble, decompile or make any attempt to ascertain, derive or obtain the source code for the Software.
12.4. Software shall not be used for any commercial purpose beyond the functionality driven by the Software. Client will not use the Software or Services to take any actions that (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation (including those regarding export control); (iii) are defamatory, trade libelous, threatening, harassing, or obscene; or (iv) constitute unauthorized entry to any machine accessible via the network.
13.1. Any written or oral information or representations provided by DMG agents, employees, resellers, consultants or service providers with respect to the use or operation of the Software will in no way effect the scope of DMG's warranty. DMG exercise no control whatsoever over the content of the information passing through their systems. DMG will not be liable for (i) any decision made by Client whether or not to use the non binding recommendation made as part of the Services, for its benefit, and for any consequence thereof; (ii) any consequence of providing any information within the Services, including information with inaccurate or inappropriate content; (iii) any bugs, computer viruses malfunctions or disruptions in the Software or (iv) any alteration, theft, or destruction of any data, files, programs, procedures, or information through accident, fraudulent means or devices, or any other method.
13.2. DMG DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT IN USING THE SOFTWARE AND/OR ANY FEATURE EMBEDDED THEREIN, OR THAT THE SOFTWARE WILL MEET CLIENT'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR BUGS FREE. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, DMG EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY LAW, AND FURTHER DMG EXPRESSLY EXCLUDES ANY WARRANTY OF NONINFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO THE EXTENT PERMITTED BY LAW.
14.1. Definition. The term "Confidential Information" shall mean: (i) any and all information which is disclosed by either party ("Owner") to the other ("Recipient") verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms, including without limitation, the pricing, of the Services and any proposals or other documents that preceded these Terms and Conditions. Confidential Information may include, but not be limited to, personal information, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, client lists, employee information, financial information, confidential information concerning any of Owner's past, current, or possible future programs, and any confidential information concerning Owner's business or organization, as Owner has conducted it or as Owner may conduct it in the future. In addition, Confidential Information may include information concerning any of Owner's past, current, or possible future products or methods, including information about Owner's research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).
14.2. Treatment of Confidential Information. Owner's Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient to any third party except to those third parties operating under non-disclosure provisions no less restrictive than in this Section and who have a justified business "need to know". Client shall protect the deliverables resulting from Services with the same degree of care. These Terms and Conditions impose no obligation upon the parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of these Terms and Conditions; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to the Owner and provided further that diligent efforts are undertaken to limit disclosure. DMG does not guarantee that Confidential Information provided to it in order for DMG to perform its support or professional services will be stored indefinitely and DMG reserves the right to purge such information from its database after one (1) year.
14.3. Survival. The terms of this Section 14 shall survive termination of the SaaS Term. If the Parties have executed a separate agreement that contains confidentiality terms prior to or contemporaneously with entering into the Front Page (and thereby, these Terms and Conditions), those separate confidentiality terms shall remain in full force to the extent they do not conflict with these Terms and Conditions.
15.1. Client shall indemnify, defend and hold harmless DMG against any claims including costs and reasonable attorney's fees that: (i) were submitted by any third party, in which DMG is named as a result of the negligent or intentional acts or failure to act by the Client, its employees or agents, while performing its obligations under these Terms and Conditions, (ii) that any Client Content (including without limitation content provided by Client for inclusion on a donation site) infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses; or (iii) arising from or relating to Client's or its users' failure to comply with these Terms and Conditions. Client indemnification obligation is contingent upon the DMG providing the Client with prompt written notice of such claim, information, all reasonable assistance in the defense of such action.
15.2. Survival. The terms of this Section 15 shall survive termination of the SaaS Term.
16. Limitation of Liability. DMG'S MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THESE TERMS AND CONDITIONS, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT, CONTRACT OR OTHER FORM OF LIABILITY, SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT DURING THE SIX-MONTHS PERIOD PRECEDING NOTICE TO DMG OF CLIENT'S LOSS. IN NO EVENT SHALL DMG BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST PROFITS, OPPORTUNITIES OR CONTRIBUTIONS, LOSS OF USE, GOOD WILL, BUSINESS INTERRUPTION, COST OF COVER, OR OTHER PECUNIARY OR NON-PECUNIARY LOSS, HOWEVER ARISING, EVEN IF DMG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DMG SHALL HAVE NO LIABILITY OR RESPONSIBILITY IN THE EVENT OF ANY LOSS OR INTERRUPTION IN SOFTWARE ACCESS DUE TO CAUSES BEYOND ITS REASONABLE CONTROL OR FORESEEABILITY, SUCH AS LOSS, INTERRUPTION OR FAILURE OF TELECOMMUNICATIONS OR DIGITAL TRANSMISSIONS AND LINKS, INTERNET SLOWDOWN OR FAILURES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CLIENT.
This Agreement shall be construed and enforced in accordance with laws of the state of Israel. Any disputes arising under or in connection with these Terms and Conditions shall be exclusively presented in and determined by the courts of the state of Israel (to the exclusion of others) and shall be subject to Israeli Law (to the exclusion of others).
These Term and Conditions, the Front Page and the rights hereunder are not transferable or assignable by the Client without the prior written consent of DMG, except to a person or entity who acquires all or substantially all of the assets or business of the Party, whether by sale, merger or otherwise.
Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. If any provision of these Terms and Conditions are held to be unenforceable, the other provisions shall nevertheless remain in full force and effect. The failure by either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach of these Terms and Conditions will not be deemed a waiver by that party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches. These Terms and Conditions and the Front Page together set forth the entire agreement between the parties with respect to the subject matter hereof and all other agreements, representations, communications and understandings, both oral and written, are superseded hereby.