1. GENERAL

These terms and conditions together with your Insertion Order (together – the “Agreement“) shall govern the relationship between you and us, whereby the Company will receive from you certain media publishing services (the “Services“). The terms of the Insertion Order shall supersede all contrary terms set forth in these terms and conditions, unless expressly set forth to the contrary.
Where used in this Agreement, references to: (a) “you” and/or “your” mean the individual or entity from which the Company receives the Services, and (b) “we“, “our“, “us” means Clicks Pros LTD (the “Company”) and, as applicable, any of its directors, officers, shareholders, employees, advisors, contractors, subsidiaries and any of its affiliated corporate entities.

2. DEFINITIONS AND INTERPRETATION

In this Agreement, references to the following words shall have the meanings set out below:
2.1 “Fees” is the amount due and payable to you by the Company, as calculated based solely on the Company’s system’s data and in accordance with the terms of this Agreement.
2.2 “Marketing Materials” means multimedia images, graphics, text, data and any other online media and any other marketing materials that have been provided or otherwise made available by the Company and/or the Company’s client to you, all in accordance with the provisions of the Insertion Order.
2.3 “Promoted Website” means the website(s) to which the Marketing Materials refer.
2.4 “Restricted Territories” means any countries and/or jurisdictions that may be decided by the Company from time to time, at the Company’s sole discretion.
2.5 “Tracker(s)” means the unique tracking code that the Company provides exclusively to you, through which the Company tracks traffic to the Promoted Website and calculates the Fees.
2.6 “Websites” means the websites on which the Marketing Materials are published.

3. SERVICES

3.1 You shall publish the Marketing Materials and/or cause them to be published on, inter alia, the Websites, in accordance with this Agreement and in accordance with the Company’s instructions.
3.2 You shall comply with all the Company’s requests and the Company’s instructions with respect to the provisions of the Services.
3.3 You shall provide true and complete information to the Company when completing the Insertion Order and promptly update such information if all or any part of it changes. You shall also provide the Company with such other information as the Company may request from time to time.
3.4 You shall not modify the Marketing Materials in any way without the Company’s prior written consent.
3.5 Use of the Trackers in the manner proscribed by the Company will not entitle you to receive Fees and/or reduce the Fees paid to you, regardless of the reason for such misuse and regardless of whether any traffic was generated to the Promoted Website on account of any action of yours. Trackers are for your sole use and are not to be assigned to others without the Company’s prior written consent. Notwithstanding any other provision herein, the Company may at any time and in its sole discretion alter the tracking system and reporting format. You understand that the Company may re-direct traffic from the Promoted Website to any other site that the Company deems appropriate in the Company’s sole discretion, without any additional compensation to you.
3.6 All data relating to the traffic generated to the Promoted Website by you, including, but not limited to, personal data, shall be solely owned by the Company and you acquire no right to such information. If you attempt to use any such information, the Company shall be entitled to immediately terminate this Agreement and to indefinitely withhold all Fees owing to you at such time.
3.7 You represent and warrant that you have the power and authority to enter into this Agreement and perform your obligations under this Agreement.

4. COMPLIANCE

4.1 The Websites shall be professional, proper and lawful under applicable legislation, rules, regulations or laws (including any laws relation to the content and nature of any advertising or marketing) and otherwise comply with the terms of this Agreement. Without derogating from the above you shall not publish the Marketing Materials on any Website that:
4.1.1 (i) pertains to alcohol, tobacco, firearms, adult or sexually oriented content or products, prostitution, politics, intimate personal hygiene, pharmaceuticals, illegal drugs, violence, profanity, expletives or inappropriate language, illegal conduct, illegal file sharing applications or software or devices that facilitate DRM removal; (ii) induces, promotes or facilitates infringement of intellectual property rights; (iii) promotes goods or services that enable the circumvention of copy protection technologies; (iv) promotes websites, companies or services identified in writing by the Company from time to time as involved with any of the above; (v) contains pornographic, obscene or indecent materials in nature or, in the Company’s sole discretion, might be deemed harmful to the Company’s business reputation or the business reputation of the Company’s advertisers or partners; (vi) offers or disseminates fraudulent goods, services, schemes, or promotions, including any make-money-fast or pyramid schemes; (vii) promotes illegal activity such as copyright infringement, racism, hate, mail fraud, spam, pyramid schemes, or other advice not permitted under applicable law; (viii) promotes or contains libelous, discriminatory or defamatory material, violates privacy rights, and/or is contrary to public policy or otherwise unlawful; or (ix) is otherwise unsuitable at the Company’s sole discretion;
4.1.2 promotes or advertises the services of any of the competitors of the Company’s clients;
4.1.3 (a) infringes the Company’s and/or the Company’s clients and/or any third party’s intellectual property rights, including but not limited to, illegal streaming and/or downloading; (b) copies or resembles the Company’s and/or the Company’s clients and/or any third party’s property in whole or in part; or (c) disparages the Company and/or the Company’s clients and/or any third party or otherwise damages the Company’s and/or the Company’s clients and/or any third party’s goodwill or reputation in any way;
4.1.4 uses and/or includes any virus, Trojan horse or any other kind of spyware and/or malware;
4.1.5 violates the terms of use and any applicable policies of any search engines; or
4.1.6 markets and/or advertises in territories which are Restricted Territories, and/or attempts to circumvent any restriction which the Company has put in place to prevent marketing and/or advertising in Restricted Territories.
4.2 If the Company determines, at its sole discretion, that you have engaged in any of the activities that contravene the provisions of Section 4.1, the Company may (without limiting any other rights or remedies available to us) terminate this Agreement immediately with or without notice and refrain from paying you any Fees.
4.3 You shall not modify the Marketing Materials in any way without the Company’s prior written consent. You shall only use the Marketing Materials in accordance with the terms of this Agreement, any guidelines the Company provides from time to time and any applicable laws, legislation, rules and regulations.
4.4 You hereby confirm that you are compliant with all applicable legislation, regulations and any and all directives, requirements and/or guidelines of applicable authorities; including, but not limited to, Regulation (EU) 2016/679 of the European parliament and of the Council of 27 April 2016 and any privacy and data protection legislation.

5. REPORTS & PAYMENTS

5.1 The Company will calculate the Fees in accordance with the Company’a reporting system, and such calculation will be considered true and correct unless proven incorrect by written and irrefutable evidence. The Company will provide you with reports concerning the Fees; the form, content and frequency of such reports may vary from time to time at the Company’s sole discretion. For the avoidance of doubt, and without derogating from the above, the Company retains full and absolute discretion in disregarding any event of fraud, abuse of any other action intended to increase the Fees. Without derogating from the above, if you and/or any person and/or entity affiliated or associated with you or otherwise acting on your behalf, uses, inter alia, deceptive marketing practices or automated means, you will forfeit all of the Fees where as determined by the Company at its sole discretion, and the Company will be entitled to terminate this Agreement with immediate effect.
5.2 The Fees will be paid by the Company in accordance with the terms of this Agreement, the Company’s calculations and the payment plan and rates outlined in the Insertion Order and the Company shall not be liable for any discrepancy from the agreed Insertion Order; where the Insertion Order does not provide any payment schedule, then within 10 business days from the end of every month the Company shall remit to you a statement of the Fees (the “Statement”) due for the previous month. You will thereafter furnish the Company with an invoice reflecting the Fees as set out in the Statement. The Fees will be payable by the Company within the later of (i) 15 days after receipt of the valid invoice submitted by you to the Company, or (ii) net + 30 days in respect of the applicable month. Provided, however, that under no circumstances will we be liable to make any payment of the Fees to you prior to the end of 10 business days from the date in which the Company actually receives the entire payment due to it from its client and which relates to that part of the applicable Services provided by you and that part of the Fees due to you. You may dispute the Statement and the calculation of the Fees solely with clear and concrete evidence and solely within 30 days from the receipt of the Statement.
5.3 Without derogating from the provisions of Sections 5.1 and 5.2, if you disagree with the monthly reports or amount payable, do NOT accept payment for such amount and immediately send the Company written notice of your dispute. Deposit of payment cheque, acceptance of payment transfer or acceptance of other payment from the Company by you will be deemed full and final settlement of the Fees due for the month(s) indicated. Notwithstanding the foregoing, if any overpayment is made in the calculation of the Fees the Company reserves the right to correct such calculation at any time and to reclaim from you any overpayment made by the Company to you and/or withhold and/or set-off from you the Fees.
5.4 You may not, under any circumstance, deduct, set-off or withhold any sums due to us if any.
5.5 The Fees are inclusive of any taxes, levies and/or charges (including, but not limited to, VAT); if any taxes, levies and/or charges (including, but not limited to, VAT) are levied on the Fees, we are under no obligation to increase the Fees in any manner whatsoever. Furthermore, if required under any applicable law, the Company has the right to withhold and/or deduct any taxes, levies and/or charges (including, but not limited to, VAT) from the Fees.
5.6 Charges for wires or courier charges for cheques will be covered by you and deducted from the Fees. For the avoidance of doubt, we have no liability to pay any currency conversion charges or any charges associated with the transfer of monies to you.
5.7 You shall keep and maintain complete and accurate records containing sufficient detail to enable the Company to verify that you have fulfilled your obligations in accordance with this Agreement. Such records shall be open to inspection by the Company during normal business hours upon 7 days’ prior written notice to you during the term of this Agreement and for a period of seven years after the termination of this Agreement.
5.8 We may, in our sole discretion, use any available means to block or restrict certain traffic on account of fraud. We do not guarantee, represent or warrant the consistent application and/or success of any fraud prevention efforts.
5.9 The Company shall not pay any Fees in respect of traffic generated from Restricted Territories.

6. TERM AND TERMINATION

6.1 This Agreement will enter into force and terminate in accordance with the provisions of the Insertion Order; where the Insertion Order does not include provisions to this effect, the Agreement will enter into force upon the execution of the Insertion Order by the Company, and may be terminated without cause upon the delivery of a prior written notice of 2 (two) days by you or the Company.
6.2 The following will apply upon termination of this Agreement: (a) you shall cease publishing the Marketing Materials; (b) you shall return all Confidential Information to the Company; (c) you shall not be entitled to any payment (save for payments in respect of Marketing Materials that were published by you in accordance with this Agreement prior to the termination of this Agreement, unless stated otherwise in this Agreement or otherwise contradicts it), including in respect of Marketing Materials that were published after the termination of this Agreement; (d) the Company may redirect and/or render any and all Trackers inoperative or otherwise change the manner in which they operate; (e) the Company reserves the right to deduct any sums owed to us from the Fees and/or withhold any payments of the Fees for a period of 6 (six) months; and (f) any Section which by the nature of its language is intended to survive the termination or expiration of this Agreement, including, but not limited to, Sections 3.5, 3.7, 5, 6, 7, 8, 9 and 10, shall accordingly survive such termination.

7. LIABILITIES

7.1 WE MAKE NO WARRANTIES OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED BY LAW, STATUTE OR OTHERWISE) WITH RESPECT TO THE MARKETING MATERIALS AND/OR THE PROMOTED WEBSITE, OR THAT OUR SYSTEM, NETWORK, SERVICES, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES) WILL BE ERROR-FREE OR UNINTERRUPTED OR WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT OR SUITABILITY OF ALL OR ANY OF THE FOREGOING. ALL WARRANTIES, REPRESENTATIONS AND IMPLIED TERMS AND CONDITIONS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHERMORE, NEITHER WE (NOR OUR PROVIDERS OR UNDERLYING VENDORS) ARE REQUIRED TO MAINTAIN REDUNDANT SYSTEM(S), NETWORK, SOFTWARE OR HARDWARE
7.2 The obligations under this Agreement do not constitute personal obligations of the owners, directors, officers, agents, employees, vendors, advisors or suppliers of the Company. In no event will we be liable for any indirect, special, incidental, consequential or punitive loss, injury or damage of any kind (regardless of whether we have been advised of the possibility of such loss) including, but not limited to, any loss of business, revenue, profits and/or data. Our liability arising under this Agreement, whether in contract, tort (including negligence), for breach of statutory duty and/or in any other way shall only be for direct damages and shall not exceed the Fees payable over the previous month at the time that the event giving rise to the liability arises. In no event will we be liable to you as a result of any action or inaction of any third party.
7.3 You shall defend, indemnify and hold us harmless from and against any and all claims, demands, liabilities, losses, damages, costs and expenses (including legal fees):
7.3.1 resulting or arising from your breach of this Agreement;
7.3.2 which are caused to us in connection with our relationship with any of the Company’s clients and/or partners, where these were caused on account of your activities, as determined in the Company’s sole and absolute discretion.
7.4 Without prejudice to any other rights or remedies available to us under this Agreement or otherwise, the Company shall be entitled to set off any payments otherwise payable by us to you hereunder, against any liability of you to us, including (but not limited to) any claims we have against you resulting from or arising from, your breach of this Agreement.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 You acknowledge that the Company owns all intellectual property rights comprised in any and all of the Marketing Materials and the Promoted Websites (to the extent owned by the Company).
8.2 If you make any amendment, addition, modification and/or derivative work in respect of the Marketing Materials, any such modification, addition, amendment and/or derivative work will be solely owned by the Company and/or its clients and you will have no right or title in such modification, addition, amendment and/or derivative work in any way whatsoever.

9. CONFIDENTIAL INFORMATION

9.1 You shall keep confidential and shall not disclose to any third party any and all proprietary information or confidential information disclosed to you by us, and/or relating to the Company’s business, processes, practices, products, customers, accounts, finance or contractual arrangements or trade secrets of the Company and any information concerning the substance of any report, recommendations, advice and/or test (“Confidential Information“), and shall use such Confidential Information solely for the performance of your obligations under this Agreement. If you become aware of any breach of confidence by any of your employees, agents, or sub-contractors you shall promptly notify the Company and give it all reasonable assistance in connection with any proceedings, which the Company may institute against any such persons. You further agree to keep confidential and not to disclose to any third party, any of the terms and conditions of this Agreement.
9.2 No press release in respect of the execution of this Agreement or any matters arising therefrom may be released by you in respect of this Agreement without the express written approval of the Company.

10. MISCELLANEOUS

10.1 All notices pertaining to this Agreement will be given by email to the email addresses provided in the Insertion Order. Any notice sent by email shall be deemed received on the earlier of an acknowledgement being received or 24 hours from the time of transmission.
10.2 There is no relationship of exclusivity, partnership, joint venture, employment, agency or franchise between you and us under this Agreement. Neither party has the authority to bind the other (including the making of any representation or warranty, the assumption of any obligation or liability and/or the exercise of any right or power), except as expressly provided in this Agreement.
10.3 You understand that the Company may at any time (directly or indirectly) enter into similar agreements to this Agreement with others on the same or different terms as those provided to you in this Agreement and that such terms may be similar, and even competitive, to you.
10.4 Except where you have received the Company’s prior written consent, you may not assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with this Agreement or any rights under this Agreement, or sub-contract any or all of your obligations under this Agreement, or purport to do any of the same. Any purported assignment in breach of this clause shall confer no rights on the purported assignee. The Company may assign this Agreement at its sole discretion.
10.5 If either party is prevented or delayed in the performance of any of its obligations under this Agreement by force majeure, that party shall notify the other party of such occurrence and be relieved from the obligation to perform its duties under this Agreement as long as the force majeure event remains in effect.
10.6 This Agreement shall be governed by and construed in accordance with the laws of Israel without giving effect to conflict of law principles. You irrevocably agree to submit, for our benefit, to the exclusive jurisdiction of the courts of the Central District, Israel, for the settlement of any claim, dispute or matter arising out of or concerning this Agreement and/or its enforceability and you waive any objection to proceedings in such courts on the grounds of venue or on the grounds of inconvenient forum.
10.7 Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any other provision hereof.
10.8 This Agreement embodies the complete agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes any prior agreement or understanding between the parties in relation to such subject matter. You acknowledge and agree that in entering into this Agreement, you have not relied on any statement, representation, guarantee warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether of ours or of a third party) other than as expressly set out in the Agreement.
10.9 The Company may amend any of the terms of this Agreement at any time, in its sole discretion, by posting the new version of the Agreement on its website. Any such amendment will enter into force on the date in which the Company posts the revised version of this Agreement on its website, unless explicitly stated otherwise in the revised version.

Last updated on 29.10.2024