Last Revised: March 1, 2023
Addressable Ltd., (“Addressable”) offers to its customers (“Customers”) an online Software-as-a-Service Platform intended for Digital marketing and market analytics (as such term is further defined below). By entering to, connecting to, accessing or using the Services (as defined below), Customer acknowledge that it has read and understood these Addressable Platform Terms of Service (the “Agreement”), that the person actually accepting this Agreement on behalf of Customer is legally authorized to bind the Customer under this Agreement, that Customer agrees to comply with all laws and regulations that apply to Customer’s use of the Services and that this agreement constitute a binding and enforceable legal contract between Addressable and Customer.
CUSTOMER ADMIN AND CUSTOMER, HEREBY REPRESENT AND WARRANT THAT CUSTOMER ADMIN USE OF AND ACCESS TO THE SERVICES ASSOCIATED WITH CUSTOMER, ARE PERFORMED UNDER CUSTOMER’S AUTHORIZATION AND SHALL INURE TO THE BENEFIT OR LIABILITY OF THE CUSTOMER.
“Ad Manager” means the role designated in Customer Social Accounts (as defined below) for management of ad campaigns including their set up, spending of media budget and monitoring of performance of campaigns.
“Affiliate” means with respect to a Party, any entity that is, directly or indirectly, controlled by and/or under common control with and/or controlling such Party or in which the concerned Party holds directly or indirectly more than 50% of its shares.
“Audience” means a group of social network profiles specifically designated as such within a social network advertising dashboard, that was produced by the Platform, based on various parameters configured by the Customer in its utilization hereunder of the Platform.
“Campaign Creative” means any text, rich media, graphics, photos, video and/or audio material or a combination thereof, and any other creative content, promotional in nature, that is part of the Customer campaign, provided to Addressable by Customer for use in the Managed Service.
“Confidential Information” means any and all information disclosed, provided or made accessible by, or on behalf of, one Party (“Disclosing Party”) to the other Party (“Receiving Party”) and/or any of its key persons, whether in writing, orally or in any other form which is not in the public domain, or regarding past, present, or future marketing and business plans, technical, financial or other proprietary or confidential information of the Disclosing Party, or which, given the nature of the information or material, or the circumstances surrounding the disclosure or provision, reasonably should be understood to be confidential or proprietary, as well as improvements, derivatives, upgrades, updates, and know-how related thereto. Confidential Information does not include information that: (i) is already or becomes generally known or available to the general public through no act or omission by the Receiving Party in breach of this Agreement; (ii) is already known to the Receiving Party at the time of disclosure without breaching any confidentiality obligation, as such may be evidenced in the Receiving Party’s written records; (iii) is rightfully disclosed to the Receiving Party by a third party, who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; (iv) is independently developed by the Receiving Party without use of, reference to, any of the Confidential Information of the Disclosing Party, as such may be evidenced in the Receiving Party’s written records.
“Customer Admin(s)” means certain individuals designated by the Customer to use and/or access the Services, on behalf of the Customer, in accordance with the relevant Order Form.
"Customer Data" means all data, works and materials: (i) provided by the Customer to the Platform; (ii) collected by Addressable’s Ad Manager access to Customer social network account; or (iii) supplied by the Customer to Addressable in the scope of Addressable’s performance of the Managed Services.. For clarity, Campaign Creative constitutes Customer Data.
"Documentation" means the technical documentation for use and operation of the Services and Platform made available by Addressable to the Customer;
“Reached Users” means any individual who views or listens to, is able to view or listen to, or interacts with, or is exposed to, any advertisement campaign of the Customer, delivered through the Managed Services.
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or non-registrable, registered or unregistered, including any application or right of application for such rights, including but not limited to copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, utility models and rights in designs;
"Permitted Purpose" means the purpose of creating Audiences in certain social networks set out in an Order Form, for serving Customer’s advertisements of its business and offering campaigns to such Audiences solely for the duration of the relevant Order Form;
“Login Credentials” means an account (including credentials such as username and password) supplied by Addressable to Customer Admin enabling such Customer Admin authorized by the Customer, to access and use the Services during the Term.
"Platform" means Addressable proprietary software-as-a-service Platform for producing Audiences based on various parameters configured by Customer.
“Managed Services” means ad campaign management services performed by Addressable pursuant to and in accordance with a relevant Order Form.
"Services" means a collective term for the services provided by Addressable including, but not limited to, access to and use of the Platform Managed Services, and additional services as may be offered by Addressable and as set forth in an applicable Order Form.
“Customer Social Account(s)” means Customer’s accounts on third party social networks such as Twitter, Instagram, Facebook etc.
Platform Access and Use
Access to Services and/or Platform is subject to an order form to be entered into between Customer and Addressable pursuant to this Agreement (the “Order Form”). An Order Form may specify and include, among others, the fees payable in consideration for Customer’s access to the Services, the scope of the Services, subscription plan and term, termination rights, additional payment and billing terms. An Order Form may be entered into in various ways (as Addressable deems appropriate), including by click-accepting an Order Form displayed through the Website or otherwise click-accepting an online form presented to Customer, or by mutual acceptance in writing. In the event of inconsistency or conflict between the provisions of this Agreement and the provisions of an Order Form, the provisions of this Agreement shall prevail unless explicitly stated otherwise in the relevant Order Form.
Subject to Customer’s compliance with its obligations under this Agreement, Addressable will provide Customer with a subscription to access the Platform and related additional Services, in accordance with the terms set forth in an Order Form.
Upon the execution of each Order Form, Addressable shall issue and provide Customer Admins appointed by the Customer, with Login Credentials to use the Services on its behalf. Customer and Customer Admin(s) may only access and use the Services through the Login Credentials issued to them by Addressable. Customer is solely responsible for maintaining the confidentiality of the Login Credentials. Any instruction, action or activity occurring through any such Login Credentials shall be deemed to be provided and/or taken by Customer, and Customer shall be solely responsible for all activities that occur under such Login Credentials, including for any unauthorized use of such Login Credentials or any other breach of security, or any related damage or loss.
Upon the execution of each Order Form and during the Term, Customer hereby grants, Addressable the right to access Customer Social Accounts as an Ad Manager, in order to perform the Services.
Subject to the terms and conditions of this Agreement, and as detailed in the Order Form, Addressable hereby grants to the Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, limited license during the relevant period set out in the relevant Order Form, to access and use, and to allow Customer Admin(s) to access and use the Platform in its consumption of Services, for the Permitted Purpose (the “License”).
Except to the extent expressly permitted in this Agreement, the Customer shall not, and shall not allow any person to: (i) use the Services and/or the Platform for any purpose other than the Permitted Purposes, and as contemplated by this Agreement; (ii) use Services and/or the Platform in connection with obscene, defamatory, slanderous, offensive, hateful, fraudulent, illegal or politically disruptive material, the definition of which shall be at the sole discretion of Addressable; (ii) engage in any hostile activity toward the Services and/or the Platform; (iii) include in the Campaign Creative any content that may encourage clicks with offers of cash, prizes or anything else of value; (v) use content, criteria, data, or a design in the Campaign Creative that encourages or is reasonably likely to lead to accidental or unintended clicks by a user on any advertisement; (vi) sell, lease, transfer, assign, sublicense or distribute its access rights to the Platform, or any part thereof, without Addressable’ prior written consent; (vii) reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the Platform, the services provided thereby or any part thereof; (viii) modify, revise, enhance, or alter the Platform or any part thereof; (ix) use the Services and/or the Platform to distribute or convey malicious content, spyware, cause of security breached, Trojans or the like; (x) copy, emulate or make derivative works, or allow copies, emulations or derivative works of the Services and/or the Platform or any part of any of the foregoing to be made (xi) create or attempt to create a substitute or similar service or Platform to the Services through use or access to the Platform or any of Addressable’ Intellectual Property; or (xii) record via video, photograph, take screenshots, or otherwise make available Platform structure (Platform, user interface, etc.) or tutorial videos of Addressable to third parties.
Fees and Payment Terms
Fees. In consideration for the grant of the License and the provision of the Managed Services, the Customer shall pay Addressable a fee for use of the Platform ("Subscription Fee") and a fee for Managed Services (“Managed Service Fee”) as set forth in the Order Form. In the event Customer elects to receive additional out of scope services from Addressable, the Customer shall pay Addressable the amounts set forth on applicable Order Form ("Additional Service Fee").
All Fees are stated and payable in either NIS or US Dollars as set out in the applicable Order Form, and are exclusive of any applicable taxes including Sales Tax (State or Federal) or Value Added Tax (VAT) which will be added by Customer to the relevant payment.
Reports. Addressable shall provide the Customer with a report based on data obtained through Customer Social Accounts regarding ad campaigns’ performance with respect to Audiences produced by the Platform.
In order for the Platform to interface with certain Customer Social Accounts in various levels of permissions as shall be approved by Customer, Addressable and the Platform require to be appointed by Customer as an Ad Manager in the relevant Customer Social Accounts and be granted the relevant permissions.
In the scope of Customer’s use of the Services and Platform, Addressable will have access to certain Customer Data. As between the Parties, Customer shall retain ownership of all Customer Data. Customer hereby grants Addressable a non-exclusive, non-sub-licensable, royalty-free license, during the Term, to use the Customer Data solely as necessary to provide the Services and to allow Addressable to perform its obligations to Customer under, and in accordance with, this Agreement
Customer hereby grants Addressable a non-exclusive, irrevocable, perpetual worldwide license to collect, store, process, analyse, transfer, display and otherwise use any and all Customer Data and any data concerning performance and usage of the Platform and Services, that is anonymized in a manner that it cannot identify Customer, Customer Admins and Reached Users, for the purpose of internal research, development, and enhancement of the Platform and related services.
The Customer represents and warrants to Addressable that it has the full right and authority to provide Addressable with the Customer Data and the provision and the use thereof by Addressable in accordance with this Agreement will not: (i) breach the provisions of any applicable law, statute or regulation (including any privacy protection or employment laws) or breach any contractual agreement to which Customer is a party; (ii) infringe the Intellectual Property Rights, privacy rights or other legal rights of any third party; or (iii) give rise to any cause of action against Addressable in each case in any jurisdiction and under any applicable law.
In the scope of its performance hereunder, Addressable shall submit to the relevant social networks, certain lists containing contact information and/or profile names of individuals to be targeted as part of the Audience, in an anonymous hashed manner. Customer will not and will not permit others or attempt itself to de-anonymize or unhash any such lists or otherwise discover the underlying personal information of individuals comprising such lists.
Customer may only use the Audiences produced by Addressable for the Purpose and solely during the Term. Upon termination or expiration of the Term, Customer shall ensure that all Audiences have been deleted and or removed from Customer Social Accounts’ advertising dashboard, and at Addressable’s request certify of the same in writing.
Data Protection and Privacy
Addressable shall collect, process, store, and transfer all personal data provided as part of the Customer Data (“Personal Customer Data”) in strict accordance with applicable law including, but not limited to, the California Consumer Privacy Act of 2018 and related regulations as amended from time to time (“CCPA”) and the EU data protection laws and regulations. Addressable shall use and store Personal Customer Data, solely for the purpose of facilitating communication and collaboration under this Agreement and for no other purposes. Addressable shall implement and maintain security procedures and practices appropriate to the nature of the Customer Data it collects, processes, stores, or transfers consistent with reasonable industry practices. If Personal Customer Data of data subjects that are EU residents is being transferred to countries outside the EU / EEA, Addressable shall ensure by appropriate means that such transfer is made in accordance with the GDPR. Addressable shall ensure that the rights of data subjects (access, rectification, deletion, and objection) are maintained with respect to Personal Customer Data. In addition, Addressable shall reasonably assist the Customer to respond to inquiries it receives under applicable data protection laws with respect to such personal data. In the event Addressable discovers a data breach involving Personal Customer Data, Addressable shall notify the Customer of such data breach as soon as practicable, but no later than within seventy two (72) hours of becoming aware thereof. In the event of such breach Addressable shall take all actions necessary to contain the data breach and provide the Customer with all reasonably necessary information it possesses with respect to the data breach and remedial actions.
Addressable Proprietary Rights
All right, title and interest in and to the Platform and Services, the Documentation or any part of any of the foregoing, including any and all derivatives, enhancements or modifications to the aforementioned, are and will remain exclusively owned by Addressable (“Addressable Intellectual Property”). Except as expressly provided herein no right, title or interest are granted to Customer in and to the Addressable Intellectual Property.
Receiving Party shall not disclose any Confidential Information to any third party; provided, however, that Receiving Party may disclose Confidential Information to its employees, agents and/or independent contractors to whom disclosure is reasonably required for performance hereof, provided that such persons are subject to confidentiality obligation not less stringent than those set forth hereunder and that Receiving Party remains responsible for the actions and omissions of such persons as is performed by Receiving Party.. Receiving Party will use Confidential Information solely for performance of this Agreement. Receiving Party will take reasonable security precautions to protect and safeguard the Confidential Information against any unauthorized use, disclosure, transfer or publication, with at least the same degree of care and precaution as it uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care.
Receiving Party shall notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information and shall take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions. Nothing in this Agreement shall prevent Receiving Party from disclosing Confidential Information that is legally required to be released and disclosed pursuant to a binding order of a government agency or a court, provided that the Receiving Party (a) notifies the Disclosing Party of such release or disclosure with as much notice as reasonably possible so that the other Party may seek a protective order or other appropriate remedy; and (b) uses reasonable efforts to limit such release or disclosure only to the extent required. The Parties agree that monetary damages for breach of confidentiality under this section may not be adequate and the non-breaching Party shall be further entitled to injunctive relief.
Representations and Warranties
Mutual Representations and Warranties. Each Party hereby represents, warrants, and undertakes to the other Party that: (i) such Party has the required power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations thereunder do not and will not, to the best of its knowledge, violate any other agreement to which it is a party; (iii) there is no other restriction, limitation, contractual or statutory obligation, including regarding the creation of Audiences, marketing of online materials, Campaign Creatives or social networks terms and conditions which prevents a Party from fulfilling its obligations under this Agreement; (iv) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
Addressable’s Representations and Warranties. Addressable hereby represents and warrants to the Customer that: (i) it has all necessary rights, licenses, know-how, expertise and experience to provide the Services under this Agreement; (ii) the Platform and Services, if operated as directed and in accordance with the Documentation and herewith, shall be free from material defects in design and construction, and shall operate substantially in accordance with the express functional specifications described in the Documentation.
Customer’s Representations and Warranties. Customer hereby represents, warrants and undertakes that: (i) it shall use the Services, and the Platform solely for the Permitted Purposes as contemplated by this Agreement (ii) it shall comply with the terms and conditions and policies of social networks with which Customer Social Accounts are maintained ; (iii) the Campaign Creatives and Customer’s properties to which Reached Users are directed following a click on any advertisement, will not contain any obscene, defamatory, offensive, infringing, illegal, deceptive, pornographic, gambling–related or hateful content; (iv) the Campaign Creatives will be free of any “virus”, “Trojan Horse”, “worm”, “disabling”, “lock out” or any other malicious code as such terms are understood in the computer industry; and (v) the Campaign Creatives and/or Customer Data are (and will continue to be throughout the Term) true and non-infringing upon any third party rights.
Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH HEREIN, ADDRESABLE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE SERVICES, THE PLATFORM OR ANY PART THEREOF. THE SERVICES, THE PLATFORM (AND ANY PART THEREOF), INCLUDING WITHOUT LIMITATION ANY AUDIENCE, CONTENT, DATA, MATERIALS, REPORTS AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. ADDRESABLE DOES NOT AND CAN NOT WARRANT THAT THE OPERATION OF THE SERVICE AND/OR AUDIENCE CREATION PROCESS AND/OR THE PLATFORM IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR.
Limitation of Liability
Under no circumstances will either party be liable for INDIRECT, special, incidental or consequential damages, including, without limitation, lost profit or loss resulting from business interruption oR LOSS OF DATA, even if a party has been advised of the possibility or likelihood of such damages. EXCEPT WITH RESPECT TO LIABILITY FOR BREACH OF sECTION 4.2 or Section 8, In no event will EITHER PARTY’S aggregate liability for any and all claims, losses or damages arising out of or relating to this Agreement or any Services (whether in contract, equity, negligence, tort or otherwise) exceed the aggregate fees AND PAYMEMNTS paid by Customer to ADDRESABLE under this Agreement during the TWELVE (12) month period immediately preceding the date upon which the applicable cause of action arises. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWELVE (12) MONTHS AFTER THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Customer shall defend, indemnify and hold harmless Addressable and its officers, directors, shareholder, employees, and Affiliates (the “Addressable Indemnitee”) from and against all costs, damages, losses and expenses, including reasonable attorneys’ fees and other legal expenses, arising from any third-party claims arising from: (i) Customer’s Data and/or Campaign Creatives violation of any third party rights or of the rules and guidelines of any relevant social network; (ii) Customer’s Data, Campaign Creatives or other Customer content or activity, being or containing any content that is, obscene, defamatory, offensive, illegal, deceitful, or unethical.
Addressable shall defend, indemnify and hold harmless Customer and its officers, directors, shareholder, employees and Affiliates (the “Customer Indemnitee”) from and against all costs, damages, losses and expenses, including reasonable attorneys’ fees and other legal expenses, arising from any third-party claims arising from: (i) the Services, and/or the Platform’s violation any third party rights, or (ii) any changes or additions made by Addressable to the Customer Data or Campaign Creative that were not approved by Customer .
The Addressable Indemnitee or the Customer Indemnitee, as applicable (the “Indemnified Party”) shall give the other Party (the “Indemnifying Party”) prompt notice of any such claim made against it and the Indemnifying Party shall be entitled, by written notice to such Indemnified Party, to assume sole control of the defense or settlement of such indemnifiable claim , at its own expense, provided that no settlement, consent order or consent judgment which involves any placement of a financial burden or admission of any liability or wrongdoing, act or omission on the part of the Indemnified Party may be agreed to by the Indemnifying Party without the Indemnifying Party’s prior written consent. The Indemnified Party shall give the Indemnifying Party all reasonable assistance, at Indemnifying Party’s cost and expense, necessary in connection with such defense.
Term and Termination
Term. This Agreement shall commence as of the Effective Date and will continue until such time as there are not Order Forms in effect between the Parties, unless terminated earlier as provided in this Agreement (the “Term”).
Termination for Cause. If either Party materially breaches this Agreement, the non-breaching Party may terminate this Agreement upon provision of written notice to the other Party, provided that the breaching Party has failed to cure such breach within thirty (30) days following its receipt of such notice.
Effects of Termination. Upon expiration or termination of the Agreement for any reason, (i) all rights and licenses granted herein, and any Order Forms executed pursuant hereof, shall terminate immediately; (ii) each Party shall promptly return to the other Party, or destroy and certify the destruction of, all Confidential Information (as defined below) to the other Party; (iii) Customer will permanently delete all Audiences provided by Addressable and shall no longer be entitled to use them; (iv) Customer shall remit in full all payments due to Addressable according to this Agreement and all Order Forms pursuant thereto; (v) the following provisions shall survive the expiration or termination of this Agreement: 4.2, 5.4, 6.1.3, 6.2, 8, 11, 13 and 14 and all other performance obligations of both Parties under this Agreement shall cease.
Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel without reference to its conflict of law principles. Any and all controversies, claims or disputes arising out of, or related, to this Agreement or the interpretation, performance or breach thereof, shall be brought before the exclusive jurisdiction of the competent courts located in Tel-Aviv, Israel.
Assignment. Neither Party may assign or transfer any rights or delegate any duties under this Agreement without the other Party’s prior written consent, except that either Party may assign or transfer this Agreement in connection with a sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this section shall be void.
Entire Agreement; Waiver. This Agreement constitutes the entire agreement between the Parties and supersedes any prior understandings or discussions relating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only by a writing that is signed by duly authorized representatives of both parties. No failure or delay on the part of either Party in exercising any right or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right or remedy preclude any exercise of any other right or remedy.
Counterparts. his Agreement may be executed in multiple counterparts, and each such duly signed counterpart, including all schedules thereto, shall be deemed to be an original of this Agreement and all of which taken together shall constitute but one and the same document, provided however that each Party shall receive a counterpart fully signed by the other Party.
Independent Contractor. Each Party is an independent contractor with respect to the other Party hereunder. This Agreement shall not be construed to: (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the Parties; or (ii) authorize any Party to enter into any commitment or agreement binding on the other Party.
Enforceability. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, then such portion shall be reformed or eliminated to the minimum extent necessary for this Agreement to be enforceable and legal, and this Agreement shall remain in effect in accordance with its provisions as modified by such reformation or elimination.
Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed received (a) when delivered personally; (b) when sent by confirmed facsimile; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (d) when acknowledged as received via email; or (e) two (2) days after deposit with a commercial overnight carrier. All communications shall be sent to the addresses set forth above or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section
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