Mamaya, Inc., a company incorporated and registered in the State of Delaware (“Mamaya”) has developed a marketing platform for analyzing the data of online platforms for the purpose of generating customized advertisements (the “Services”). These terms and conditions (this “Agreement”), which sets forth the terms and conditions pursuant to which Mamaya shall provide the Services, is by and between Mamaya and the party accepting the terms and conditions of this Agreement through the Mamaya Internet site. For purposes of this Agreement, “Effective Date” means the date that Customer accepts this Agreement.This is a binding legal agreement. By clicking on “I accept” or otherwise agreeing to be bound by this Agreement you represent and warrant that you have read, understood and agree to all terms and conditions of this Agreement on behalf of Customer, and that you are authorized by Customer to agree to all the terms and conditions of this Agreement on its behalf. If you do not agree to this Agreement, do not click “I accept” and do not use the Services. NOW, THEREFORE, the parties hereby agree as follows:
Services. Subject to the terms and conditions of this Agreement, Mamaya shall provide Customer with a plug-in (the “Mamaya Software”) for installation on Customer’s proprietary platform (the “Customer Platform”). Customer may use the Mamaya Software on a non-exclusive basis solely for the purpose of receiving the Services from Mamaya for its internal purposes. Except for the executable form of the Mamaya Software provided by Mamaya, Customer shall not be entitled to any other software (including any other executable or source code) from Mamaya. No licenses or rights are granted herein by estoppel or by implication. Customer represents that it has all necessary authority to enter into this Agreement and that its agreement to these terms and conditions and its receipt of the Services will not conflict with any legal, regulatory or contractual obligations of Customer. We may choose to modify or cease providing the Services at any time in our sole discretion.
Restrictions. Except as set forth expressly herein, Customer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Mamaya Software or the Services; (b) modify the Mamaya Software or Services, (c) sublicense, sell, distribute or provide the Mamaya Software or Services to any third party, or (d) bypass any security measure or access control measure of the Mamaya Software or Services. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Customer shall inform Mamaya in writing in each instance prior to engaging in the activities set forth above.
Customer Material. Mamaya uses Data to create customized advertisements for Customer’s website. In creating such advertisements, Mamaya uses content otherwise publicly available on Customer’s Internet website, including graphics of products that Customer makes available for sale (collectively, “Customer Materials”). Customer may choose through the Services which products and product categories will be advertised. As such, Customer is solely responsible for all Customer Materials associated with the chosen products and product categories that are incorporated into advertisements. Customer represents and warrants that no Customer Material incorporated in any advertisement (a) infringes the intellectual property, publicity, privacy or moral rights of any third party, (b) contains any material that is defamatory, harassing or threatening; (iii) contains any pornography or obscene material; or (iv) contains any content that is illegal or fraudulent. Customer provides Mamaya with a worldwide, non-exclusive, royalty-free, and sublicensable license of all worldwide rights necessary to incorporate Customer Materials into Internet advertisements and to display such advertisements incorporating Customer Materials to third parties for the purpose of providing the Services.
Intellectual Property. Mamaya has all right, title and interest in the Mamaya Software and Services, including all enhancements, improvements and modifications thereof (“Mamaya Property”). Mamaya does not request Customer’s feedback regarding the Mamaya Property. Notwithstanding the foregoing, if Customer provides Mamaya with any feedback regarding the Mamaya Property, Mamaya may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback. Subject to the foregoing, as between the parties, Customer retains all right, title and interest in Customer Material.
Confidentiality. Either party (a “Disclosing Party”) may disclose to the other party (a “Receiving Party”) certain confidential information regarding its technology and business (“Confidential Information”). Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its provision or use of the Services. Confidential Information shall not include information that Receiving Party can show (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperates in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. All pricing information provided by Mamaya and all non-public information in respect of the Services shall be deemed the Confidential Information of Mamaya.
Advertising Account; Ad Spend. Use of the Mamaya Software and Services will provide Mamaya with access to Customer’s online advertising account as chosen by Customer (for example, Customer’s Facebook ad account). By using the Services, Customer consents to Mamaya displaying Internet advertising incorporating Customer Materials through Customer’s advertising account as determined by Mamaya’s proprietary algorithms. Customer shall be solely responsible for all payments made to third parties for the publishing of advertisements though Customer’s online advertisement account. Customer represents and warrants that it has all rights necessary to provide Mamaya with access and use of Customer’s advertising account as set forth herein.
Payment. In consideration of the Services, Customer shall make payment to Mamaya in the amount agreed between the parties when Customer registers for the Services. Amounts due hereunder do not include VAT and other taxes, and Customer shall make payment in respect of such taxes in addition to other amounts due hereunder. Customer shall make payment to Mamaya without deduction or withholding of any taxes or other government charges. Late payments shall bear interest at the rate of 18% per annum.
Indemnification. Customer shall defend, indemnify and hold harmless Mamaya (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which Mamaya may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from or relating to any breach of this Agreement by Customer. Customer may not settle or compromise such suit without Mamaya’s consent, not to be unreasonably withheld. Mamaya may be represented in any such suit by counsel of its own choosing at its own expense.
Warranties; Disclaimer. The Mamaya Software and Services are provided “as is”. To the maximum extent permitted by applicable law, Mamaya disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Mamaya does not make any guarantee that any advertisements generated by the Services will be useful or will result in any business or leads. Mamaya does not guarantee the Services will be operable at all times or during any down time (a) caused by outages to any public Internet backbones, networks or servers, (b) caused by any failures of Customer’s equipment, systems or local access services, (c) for previously scheduled maintenance or (d) relating to events beyond Mamaya’ control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Mamaya or its servers are located.
Limitation of Liability. In no event shall Mamaya (or its directors, officers, affiliates, agents or employees) have any liability for any consequential, indirect, special or punitive damages, arising out of or relating to the Mamaya Software or Services. The entire liability of Mamaya (or its directors, officers, affiliates, agents or employees) hereunder shall not exceed the total amount Customer has actually paid to Mamaya in respect of the Services in the 12 months prior to the applicable claim. Customer understands that the performance of Mamaya depends on third party advertising platforms. Mamaya shall have no liability for any damages caused by or resulting from the actions or omissions of such third party platforms.
Term. The term of this Agreement (“Term”) shall commence on the Effective Date and shall continue for the period agreed between the parties when Customer registers for the Services. Except as otherwise agreed between the parties in writing, either party may terminate this Agreement at any time with 30 days prior written notice. Either party may terminate this Agreement upon written notice if the other party shall materially breach this Agreement and not cure such breach within 10 days of receipt of written notice thereof from the non-breaching Party. Upon any termination of this Agreement, Customer shall cease all use of the Services and shall delete all copies of the Mamaya software. Sections 2 – 14 of this Agreement shall survive any termination or expiration thereof.
Publicity. Mamaya may disclose that Customer is using the Technology, including by displaying Customer’s name and logo on Mamaya’s website and other marketing materials.
Miscellaneous. This Agreement together with its Exhibits constitute the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties regarding the subject matter hereof. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed or agreed to by both parties. You must comply with any applicable terms and conditions of any third party, including without limitation, any applicable terms and conditions of any third p[arty platform such as Facebook or Twitter. If any part of this Agreement shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement. Mamaya may assign its rights or obligations under this Agreement to an affiliated company or to a purchaser of all or substantially all of Mamaya’s assets or share capital, or to any company succeeding to Mamaya’s business. Customer shall not assign any of its rights or obligations hereunder without Mamaya’s prior written consent. Assignments in violation of the foregoing shall be void. This Agreement shall be governed by the laws of the State of Israel, and the competent courts in the city of Tel Aviv shall have exclusive jurisdiction to hear any disputes arising hereunder. Notwithstanding the foregoing, either party may seek an injunction or other equitable relief in any court of competent jurisdiction in order to prevent a breach or threatened breach of this Agreement. Mamaya may provide notices hereunder to the email address provided by Customer upon registration.