Terms of Service

Last updated: July 21, 2016


Please read these Terms of Service (the "Terms of Service") before using or accessing the Services (as defined below). By using or accessing the Services, You (i.e. Partner as defined below) agree to be bound by these Terms of Service, the Insertion Order and the Company's Privacy Policy (together, the "Agreement") and the licenses granted hereunder are subject to compliance with any and all terms of this Agreement. If you do not accept this Agreement, do not use, or access the Services or any portion thereof.

 

1.          Definitions

1.1.              "Advertising Impression" means each instance in which the Services are used to display advertising content, in whole or in part, to an end user.

1.2.              "Advertiser" means any person paying any type of consideration for Advertising Impression or any action of an end user.

1.3.              "Ad Opportunity" means an opportunity to place an advertisement that the StreamRail Platform receives

1.4.              "Claims" means claims, suits, demands and actions brought or tendered for defense or indemnification.

1.5.              "Company" means ironSource Neon Ltd. and its successors and assigns.

1.6.              "Content" means all media delivered through the Services, including videos, images, graphics, animations, sounds, text and music.

1.7.              "Content Delivery" means each instance in which Content, in whole or in part, is viewed through, accessed by, or made available through the Services.

1.8.              "Data" means all transactional and Content data obtained by, processed by or provided to the Company in connection with the use of the Services. Data may include metadata (such as title, author, description and other information pertaining to Content), IP addresses, URLs, browser and operating system.

1.9.              "Edition" means a particular edition of the StreamRail Platform or StreamRail Player.

1.10.        "Insertion Order" means the insertion order entered into between Company and Partner setting forth custom pricing and additional terms for the use of Services.

1.11.           "Licensing Key" means certain code in the StreamRail Player that permits Company to track use of the Services in accordance with applicable privacy guidelines and ensure compliance with this Agreement. The Licensing Key may track the URLs on which such use occurs, the volume and type of media streamed through the Services, and which Services are used. Use of such information is governed by this Agreement as further detailed below.

1.12.           "Losses" means damages, losses, costs, and liabilities, including reasonable attorney and professional fees, arising from a Claim

1.13.           "Partner" means you and any entity on whose behalf you use the Services.

1.14.           "Plugin" means the javascript code, mobile SDK or any other plug-in provided to Partner by Company to incorporate into its Property, enabling Partner's Property with access to the Services.

1.15.           "Property" means a website, mobile website, software, desktop application or mobile application, operated by Partner (or on its behalf) on which the Services are integrated.

1.16.           "Services" means services hosted by the Company (or on its behalf) and provided to Partner under this Agreement, including but not limited to the StreamRail Platform, the StreamRail Player (including hosting & streaming).

1.17.           "Statistics Component" means a component of the StreamRail Platform or a 3rd party component that enables Company to collect information regarding Partner’s use of Services such as IP address, browser type, Internet Service Provider, and operating system. Information obtained through the Statistics Component is used to power certain features of Services. Company’s use of such information for other purposes is governed by this Agreement and set forth in more detail below.

1.18.           "StreamRail Platform" means Company's advanced content delivery solution, a content management service which includes, without limitation, media services (transcoding, resizing etc), A/B testing, optimization, performance enhancement, platforms and streaming protocols, Statistics Component.

1.19.           "StreamRail Player" means all existing, non-obsolete versions of the cloud-hosted StreamRail Player and any updates (other than new major versions) provided by the Company for the foregoing, if any.

1.20.           "User Data" means any personal and non-personal information pertaining to end users collected through the Services.

2.          Software as a Service License

Subject to the terms and conditions of this Agreement, including without limitation Partner's payment of the Consideration set forth herein, Company hereby grants Partner a non-exclusive, nontransferable, non-sublicensable, worldwide and limited license to use and access the Services for the sole purpose of providing its end users with the Content on the Property (the "License"). Under the License, Company shall provide the Plugin and hereby grants Partner a non-exclusive, non transferable, non-sublicensable, worldwide and limited license to incorporate the Plugin on the Property for the sole purpose of providing access to the Services.

Partner’s License to use the Services is limited to the Editions stated in the Insertion Order and for which it has paid all Consideration in accordance with this Agreement. Any use of the Services other than as permitted by this Agreement is strictly prohibited and will automatically terminate Partner’s rights under this Agreement. All rights and licenses not expressly granted by this Agreement are reserved by the Company.

3.          Content License

By using the Services, Partner agrees to and hereby grants and represents and warrants that it has the right to grant, the Company a royalty-free, fully paid up, worldwide license to use the Content in connection with the operation and provision of the Services.

Company does not screen any Partner's Content and is not responsible for any use of the Content. All intellectual property rights in the Content provided to Company by Partner lie exclusively with Partner or its licensor.

Under no circumstances whatsoever will Company be liable in any way for any Content and any use thereof in any way, including, without limitation, for any errors or omissions, or for any infringement of third party's rights, loss or damage of any kind incurred as a result of the use or display of any Content transmitted, uploaded or otherwise made available in connection with the Services.

4.          Intellectual Property

The Company is the sole owner of all intellectual property rights pertaining to the Services and the Plugin, and any and all derivatives, changes and improvements thereof, including but not limited to copyright, trademark and patent rights and all rights not expressly granted herein are reserved.

5.          Restrictions on Use

Partner is prohibited from using the Services for any purpose that is prohibited by this Agreement. Partner shall: (i) not attempt to sell, resell, infiltrate, hack, reverse engineer, decompile, or disassemble or otherwise attempt to interfere with the proper operation of the Services, or any part thereof for any purpose and shall not simulate or derive any source code or algorithms from the Services or use any of the foregoing to create any software or service similar to the Services; (ii) not represent that it possess any proprietary interest in the Services; (iii) not use any robot, spider, or other device to retrieve, index, scrape, data mine, or in any way gather information, Content, or other materials from the Services; (iv) not directly or indirectly, take any action to contest Company's intellectual property rights or infringe them in any way; (iv) except as specifically permitted in writing by the Company, not use the name, trademarks, trade-names, and logos or other proprietary rights of the Company; and (v) through its terms of service and otherwise, prohibit all end users from derogating from any of the foregoing provisions in this section.

Partner is solely responsible for any Content Partner posts, uploads, submits, distributes or facilitates distribution. Prohibited Content includes any Content that (i) infringes any copyright, trademark, patent, trade secret, right of privacy or right of publicity or other right of any person or entity, (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic, profane, or is otherwise inappropriate as determined by the Company in its sole discretion, (iii) contains any virus, worms, Trojan horses or other harmful or destructive code or content intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of the Company or any person or entity, (iv) encourages illegal activity, or (v) falsely suggests or implies sponsorship or endorsement by the Company. The Company may review and delete or prevent the delivery of any Content that, in its sole judgment, violates this Agreement or any applicable law or regulation, or is otherwise objectionable.

Partner shall not, nor shall Partner allow, assist, authorize or encourage any third party to use the Services on any website that is unsuitable. Unsuitable sites include sites that include content that the Company may deem is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable, which by way of example only, might mean that they: (i) promote or contain sexually explicit materials, violence or violent materials, libelous or defamatory materials, (ii) contain speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or promote discrimination, (iii) promote or undertake illegal gambling, sale of firearms, hacking or cracking or any illegal activity, (iv) contain graphic violence, (v) may bring the Company to disrepute, (vi) include any trademark of the Company in its domain name, or (vii) infringe intellectual property rights, contain any spyware, adware or other unwanted threats. It is Partner's duty to ensure at all times that each website is suitable. The Company may terminate this Agreement at any time if the Company determines, in its sole discretion, that any website is unsuitable. Partner shall not allow, assist, authorize or encourage any illegal activity or any other activity which Company, in its sole discretion, deems to be one of the following: using, engaging with or facilitating deceptive or false representations or notifications to an end user (e.g., impersonating system notifications or misrepresenting that the installation is necessary for security or privacy purposes, or in connection with opening, viewing or playing a particular type of content) or any other manner of automated installation (including allowing updates or changes) without a conspicuous disclosure and the end user’s knowledge, control and prior informed consent; using automated traffic generation (e.g., scripts, web crawlers, spiders, bots or other similar non-human programs that result in clicks without the end user’s knowledge); taking any action that may pose any security risk, exploit known security vulnerabilities or harm the security of end user’s device or the privacy of the end user, or materially interfere with or disrupt web navigation or browsing, or triggering obstructive or intrusive functions that hinder an end user’s ability to use its computer; using any misleading, deceptive or fraudulent practices whatsoever with respect to advertising Content (including providing unproven or misleading endorsements); disabling, modifying, interfering or intervening with end users' control over the operating system, browser settings, browser functionality or webpage's display without the prior and informed consent of the end user; replacing any existing advertisement; acting in a fashion that may harm or dilute Company’s reputation. Partner shall not engage in, allow or benefit from any act or traffic that involves Fraud. "Fraud" means any action or omission that is (i) illegal in any applicable jurisdiction, (ii) made in bad faith, or (iii) intended to defraud the Company or any Advertiser, publisher, end user or any other third party and/or circumvent any contractual or legal restrictions, regardless of whether such act or attempted act actually causes Company or any of the Advertisers, publisher, end user or any other third party any damage or harm. Fraud shall include, without limitation, attempts to create false impressions, sales, leads, or click-throughs whether manually or using robots, frames, iframes, scripts, or any other technological means from false accounts or by unauthorized use of any third party accounts. If Partner engages in any of these actions Company will have the right to immediately terminate this Agreement.

Partner shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, trade secrets, rights of publicity or other proprietary rights or any other harm resulting from any Content submitted by Partner or any third party.

Although the Company does not monitor any files or Content transmitted or made available through the Services, if the Company becomes aware of any possible violation by Partner or any third party of any term of this Agreement, the Company reserves the right, to its sole discretion, to immediately suspend the use of the Services or terminate the use upon repeated infringements, or remove any Content from the Services at any time and to its sole discretion.

6.          Insertion Order

Prior to any use of the Services, Partner must execute the accompanying Insertion Order.

7.          Advertising

Partner is permitted to use the Services to upload and display advertisements as Content, subject to compliance with all terms of this Agreement, and any Advertising Impression limitations set forth on an applicable Insertion Order.

8.          Licensing Key and Statistics Component

The Company utilizes a Licensing Key to ensure compliance with this Agreement and a Statistics Component to power the Services’ data tracking and reporting functionality and to collect information, including User data. The User Data may be used in accordance with the Company’s Privacy Policy, detailed further below. Partner is strictly prohibited from removing, altering, disabling or circumventing any Licensing Key or Statistics Component or otherwise interfering with the Company’s ability to monitor use in accordance with this Agreement.

The Company will not share personally identifiable information gathered from the Licensing Key or Statistics Component with any third party without the Partner’s express written consent. The Partner grants the Company a limited license to use the information, including User Data, collected by the Licensing Key and Statistics Component to facilitate the provision of the Services, ensure compliance, and use aggregated, non-personally identifiable data for its internal business analysis and purposes.

9.          Term and Termination

This Agreement shall become effective on the earliest date of (i) the execution of a Insertion Order, or (ii) the date in which a Service is used by Partner (the "Effective Date"), and shall remain effective until terminated pursuant to this Section and as further provided in the accompanying Insertion Order (the "Term"). This Agreement is subject to termination by the Company after a 14 days written notice if (a) Partner fails to timely pay any payments due under this Agreement or provide a valid credit or debit card for such payment, (b) Partner breaches any term of this Agreement, (c) Partner becomes insolvent, declares bankruptcy or a receiver or trustee is appointed for Partner, (d) the Company has a reasonable basis to believe that Partner is impairing the Company’s business, or (f) Partner is or becomes engaged in a business that is competitive with the Company’s business, and in all such cases the breach has not been cured within such 14 days period. Either party shall have the right to terminate this Agreement immediately at any time by providing the other party thirty (30) days in advance written notice, without thereby incurring any liability towards the other party.

In the event of any termination, any outstanding Consideration amounts as set out in the Insertion Order shall immediately become due and payable, the license granted herein shall be terminated and the Client shall immediately stop using the Services. Upon termination, all rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination and remedies for breach of these this Agreement shall survive. The Company is under no obligation to provide a refund for the Consideration received from Partner or apply such Consideration to future services. Following the termination of this Agreement, any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination of this Agreement shall be deemed to survive for as long as necessary to fulfill such purposes.

10.        Performance of Service

 The Company is not responsible for performance issues caused by low-performance end-user computers, low-bandwidth end user Internet connections, periodic network congestion among network providers, and low-bandwidth connectivity from redirected image and video sources, improperly configured campaigns, and low-bandwidth connectivity from any Content servers. In the event the Company identifies slow performance due to its system, the Company shall use commercially reasonable efforts to restore the Services to acceptable performance levels. Partner’s sole remedy for any disruption or failure to provide support shall be termination of this Agreement.

11.        Privacy

Exercise of the rights and licenses granted hereunder shall be subject to the Company’s Privacy Policy, currently available at www.streamrail.com/privacy, which is incorporated by reference herein. Partner shall place prominent notices regarding Company's Privacy Policy in its own Property and comply with the privacy policy terms and any applicable law.

The Company reserves the right to collect User Data through the Services, in accordance with its Privacy Policy. Nothing herein shall prohibit the Company’s to provide, monitor, analyze or market the Services or for its other reasonable business purposes and Partner grants the Company a non-exclusive, royalty-free right and license to use any information obtained through the Services, including User Data, in connection with the purposes described above.

12.        Fees and Payment

Partner must timely pay all fees ("Consideration") due to the Company stated in the Insertion Order, pursuant to the terms stated therein. Partner is prohibited from using the Services if the Consideration due have not been paid. Periodic (monthly or annual) Fees are billed in advance. All Fees are non-refundable except as otherwise provided in this Agreement. Partner shall be responsible to pay all taxes and VAT due in connection with the Consideration and Partner’s use of the Services. Partner must provide the Company with accurate and complete billing information including a valid credit or debit card or any other payment method as further detailed in the applicable Insertion Order. If payment is made via a credit or debit card, Partner authorizes the Company to charge all Consideration incurred to the designated card and acknowledges that periodic (monthly or annual) Consideration may be charged automatically and without separate authorization unless otherwise provided on an applicable Insertion Order. The Consideration will be calculated solely based on the Company's reporting system.

13.        Partner Representations and Warranties

The Partner represents and warrants that: (i) the Partner consent to this Agreement and the accompanying Insertion Order has been duly ratified; (ii) all its Content conforms to the Section titled “Restrictions on Use”; (iii) any use in accordance with the above license under Section titled "Content License" does not infringe upon any third party's proprietary rights, including but not limited to intellectual property rights, privacy and publicity rights; (iv) Partner has fully complied with any third-party licenses, permits and authorizations required in connection with the Content; (v) Partner shall provide the end users with any notice and obtain any consent from end users as required by applicable laws and regulations in connection with the collection, use and disclosure of any user data via the Services, including with respect to use of cookies or other similar technologies or Web RTC technology, or any type of information stored, relayed or accessed in the end user's terminal device, pursuant to any applicable law. Without limiting from the generality of the foregoing, Partner will provide prominent notice to end users addressing the collection, use and sharing of any user data via the Services, which shall link to the Company's Privacy Policy as available here www.streamrail.com/privacy , which is incorporated by reference herein, in accordance with any applicable law.  Partner shall ensure that its activities within the scope of this Agreement comply with the Company's Privacy Policy, and provide such notice in a legally adequate privacy policy that Partner presents to end users as part of the Services.

14.         Disclaimer of warranties

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY FURTHER EXPRESSLY DISCLAIMS THAT THAT THE USE OF THE SERVICES WILL BE CONTINUOUS, THAT THE SERVICES WILL BE ERROR-FREE OR WITHOUT INTERRUPTION OR THAT ANY ERRORS IN THE SERVICES WILL BE CORRECTED, OR THAT ANY INFORMATION CONTAINED THEREIN WILL BE ACCURATE OR COMPLETE.

The use of the Services is at partner’s own risk and partner is solely responsible for determining the appropriateness of exercising the rights granted under this Agreement and assumes all risks associated therewith, including but not limited to the risks and costs of program errors, compliance with applicable laws, damage to or loss of data, programs or equipment, unavailability or interruption.

15.        Limitation of Liability

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OR INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY PARTNER TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

16.        Indemnification

Except as otherwise set forth in this Agreement, Partner shall indemnify, defend, and hold harmless the Company and its representatives, shareholders, directors, officers, employees and agents, from and against all Claims, and for all resulting Losses (including attorney’s fees) that result or arise from Claims, which in whole or in part, arise from Partner’s use or other exploitation of the Services and in connection with the use or display of the Content in the Services.

17.        Confidentiality

Each party acknowledges that it may have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should reasonably be considered confidential. Each party agrees that it will not use Confidential Information of the other party in any way for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor will it disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary on a need to know basis) any of the other party’s Confidential Information and it will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Upon termination or expiration of this Agreement for any reason, each party will return to the other party or destroy, at the other party’s request, all Confidential Information of the other party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.

18.        Independent Contractors

The parties hereto are independent contractors and nothing herein constitutes or creates an employer-employee, agency, joint venture or representative relationship between the parties.

19.        Force Majeure

Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.

20.        Publicity

Either Party may issue publicity or general marketing communications concerning its involvement with the other Party, unless the other party has provided written notice stating otherwise.

21.        Export

Partner agrees and certifies that it will not export or re-export, directly or indirectly, the Services contrary to the laws of the United States or any other country from or to which such export or re-export may occur.

22.        Assignment

Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor of all assets of a party via a merger or acquisition of substantially all assets of the applicable party, subject to such successor's assumption of all rights and obligations hereunder. Any purported assignment contrary to this section shall be void.

23.        Severability

If for any reason a court of competent jurisdiction finds any provision of this Agreement, to be unenforceable, that provision of this Agreement shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

24.        Governing Law

This Agreement and any matters related hereto shall be governed by, and construed in accordance with Israeli law without regard to its conflicts of law principles or provisions, and shall be subject to the exclusive jurisdiction of the authorized courts of Tel Aviv-Jaffa, to the exclusion of any other court.

25.        Injunctive Relief

Partner acknowledges and agrees that unauthorized use of the Services or disclosure of Confidential Information may cause the Company irreparable harm for which its remedies at law may be inadequate. Partner hereby agrees that the Company will be entitled, in addition to any other remedies available to it at law or in equity, to obtain immediate injunctive relief to prevent such unauthorized actions.

26.        Entire Agreement

This Agreement and applicable Insertion Orders constitute the entire agreement between the Company and Partner with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.

27.        Modifications

The Company may modify the terms of this Agreement at its sole discretion and such modifications shall take effect and be binding on Partner on the earliest date which they are posted to the Company’s publicly available website or delivered to Partner via electronic or physical delivery.

28.        No waiver

No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the other Party. No waiver or consent by either Party to deviate from the provisions of this Agreement shall operate as a waiver of any subsequent right.

 

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