Service Agreement

Service Agreement

Moburst, Ltd., a company incorporated under the laws of the State of Israel, with an address at Zarhin 13 St., Raanana and its affiliates (“Moburst“) provides global mobile marketing services. This Services Agreement (this “Agreement“), which sets forth the terms and conditions pursuant to which Moburst shall provide such services (“Services“), is made by and between Moburst and the party accepting the terms and conditions of this Agreement (“Customer“). For purposes of this Agreement, “Effective Date” means the date that Customer accepts this Agreement, including by agreeing to the terms of a Statement of Work (as defined below) that references this Agreement.

This is a binding legal agreement. By 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. Changes may be made to this Agreement from time to time. Customer’s continued use of the Services will be deemed acceptance to amended or updated Agreement. If Customer does not agree to this Agreement or any of its terms, please do not use the Services.

  1. Services. During the Term, Moburst shall provide Customer with Services pursuant to an effective Statement of Work and the terms and conditions of the applicable Service Category Exhibit, as set forth, in Section 3 below.
  2. Scope of Agreement; SOW.From time to time, Moburst and Customer may mutually execute statements of work (which may also be referred to as “insertion orders”) for provision of Services hereunder, which statement of work or insertion order shall refer to this Agreement and describe the Services to be provided by Moburst and any applicable terms and conditions (“Statement of Work” or “SOW“).  No SOW shall be effective unless executed or otherwise agreed to by both Moburst and Customer, provided however that Customer shall be deemed to have executed and agreed to an SOW if it consents by email to the provision of Services pursuant to that SOW. In the event of any inconsistency between the SOW and this Agreement, the terms specified on the SOW shall prevail to the extent of such inconsistency.
  3. Service Category Exhibits. Each SOW shall describe the specific Services to be provided by Moburst to Customer. The terms and conditions set forth in the specific exhibits listed below (each, a “Service Category Exhibit“) shall be effective as to the provision of specific categories of Services.

Exhibit A – Product consulting
Exhibit B – ASO
Exhibit C – Media
Exhibit D – Creative

For example, if an SOW provides that Moburst shall provide Customer with ASO services and Media services, then the terms and conditions of Exhibit B shall be applicable to the provision of such ASO services and the terms and conditions of Exhibit C shall be applicable to the provision of such Media services.

  1. Payment. Customer will pay the fees specified in the applicable SOW, which exclude all applicable taxes duties and charges (including but not limited to transaction fees), which shall be paid by Customer. Unless different payment terms are set forth in the applicable Service Category Exhibit or the applicable SOW, Moburst will invoice Customer prior to the provision of the applicable Services and Customer shall make payment of the invoice within 14 days of the date specified on the invoice. Late payments shall be subject to a late payment charge of 12% per annum. In the event that Customer has paid in respect of Services and Moburst has received such payment(s), and such Services have not (fully) been provided in accordance with the terms specified in the SOW and this Agreement, due to reasons not attributable to Moburst, Customer may use the outstanding amount, as confirmed by Moburst (“Outstanding Amount“) as payment in respect of such future Services to be provided (as detailed in the applicable SOW) in accordance with this Agreement and the relevant SOW, for a period of six (6) months following Moburst’s receipt of such Outstanding Amount.

 

  1. Representations and Warranties.
    • Mutual Representations; Disclaimer. Each party represents and warrants that (a) it has the full authority to enter into and to perform under this Agreement and that its performance under this Agreement will not violate in any material respect any agreement, understanding or commitment with a third party, and (b) in fulfilling its obligations under this Agreement it will comply with all applicable laws, rules and regulations.
    • Moburst Representations. Moburst represents that (a) it will use commercially reasonable efforts to perform all Services described in a mutually agreed SOW faithfully, diligently and with skill and ability in accordance with industry standard; (b) subject to Customer’s compliance with its warranties and obligations under this Agreement, the provision by Moburst of Services hereunder will comply with all applicable laws and regulations; (c) to the best of its knowledge, the Deliverables (as such term is defined in the applicable Exhibit or SOW) do not infringe any third party intellectual property rights.
    • Customer representations. Customer warrants that: (a) no Customer Material (as defined below) and Trademarks (as defined below); (i) infringes any rights of any third party, (ii) contains any defamatory, libelous, sexual, pornographic or otherwise offensive material, or (iii) contains any viruses, worms or other malware (b) it shall not provide Moburst with any personally identifiable information (as defined in applicable law) of any person, unless specifically agreed between the Parties in writing and in advance, (c) it will inform Moburst if it has reason to believe that the provision of Services as contemplated hereunder violates any law, regulation or right of any third party.
  2.          Disclaimer of Warranties. Except as expressly set forth herein, all Services are provided “As-Is” and “As Available” and Moburst disclaims all implied and statutory warranties, including in respect of merchantability, fitness for a particular purpose and non–infringement.

 

  1. Customer Material and Trademarks. Customer may provide Moburst with: (i) certain material (including Customer-branded material) to be used by Moburst in the provision of the Services (“Customer Material”); (ii) Customer’s name, logo and trademarks (“Trademarks“). Moburst shall not use such Customer Material or Trademarks except for the provision of Services hereunder. Customer hereby grants Moburst a non-exclusive, non-assignable, non-transferable, royalty-free right and license to use, display and publish the Customer Material and Trademarks in connection with the Services provided hereunder.  Moburst may use the Trademark in accordance with Customer’s trademark guidelines, as may be provided by Customer to Moburst from time to time in writing. Moburst may terminate this Agreement at any time if Customer provides trademark guidelines that are incompatible with the provision of Services as agreed hereunder.

 

  1. Intellectual Property. Customer has and shall at all times retain all right, title and interest in the Customer Material and the Trademarks, the Customer name, and all trademarks and logos in respect of the foregoing (the “Company Intellectual Property“). Moburst has and shall at all times retain all right, title and interest in the name “Moburst”, and its trademarks and logos, and its proprietary know-how used to provide the Services hereunder (the “Moburst Intellectual Property“). If during the provision of the Services, Moburst shall provide Customer with any Deliverables, terms regarding the ownership of such Deliverables shall be as set forth in the applicable Service Category Exhibit. Except as set forth in an applicable Service Category Exhibit or agreed otherwise between the parties in writing and in advance: (i)Moburst retains all right, title and interest in all Deliverables; (ii) all Deliverables are provided in closed format not readily modifiable by Customer. If Customer provides Moburst with any feedback concerning the Moburst Services, nothing in this Agreement or in the course of dealing of the parties shall impose any confidentiality obligation in respect of such feedback. No rights are granted hereunder by estoppel or implication.

 

  1. Confidential Information” means any business and technical information disclosed by one party (“Disclosing Party“) to the other party (“Receiving Party“) that is identified as confidential or proprietary, or which should reasonably be understood to be confidential or proprietary. Confidential Information does not include information which Receiving Party can show (a) is or has become publicly available without its breach of this Agreement; (b) was in its possession prior to disclosure, (c) was provided by a third party having a lawful right to make the disclosure; or (d) is required to be disclosed by law or a court order (“Order“), provided the Receiving Party provides prompt written notice of the requirement and cooperates with Disclosing Party as reasonably necessary to limit or eliminate such requirement, if and to the extent permitted by such Order. Receiving Party will not use the Confidential Information of the Disclosing Party except for performance of its obligations under this Agreement. The terms and conditions of this Agreement, including without limitation any pricing terms hereof, shall be deemed the Confidential Information of Moburst. Customer Material shall be deemed Confidential Information of Customer, provide however, that Moburst may use any data received from Customer (including but not limited to Customer Material) for its own internal purposes such as the general improvement of its Services or in order to recommend Services to third parties.

 

  1. Data Retention. Customer acknowledges and agrees that Moburst is not a data retention service. Customer must create backups of its data, and Moburst shall have no responsibility or liability in respect of any loss off or damage to any Customer data.

 

  1. Indemnification.

11.1 Moburst Indemnification. Moburst will defend, indemnify and hold harmless Customer for any damages, losses, costs and expenses resulting from any third party claims to the extent relating to the incorporation by Moburst of any materials (excluding Customer Material) in a Deliverables that infringes third party copyrights or trade secrets.

11.2 Customer Indemnification. Customer will defend, indemnify and hold harmless Moburst for any damages, losses, costs and expenses resulting from any third party claims to the extent relating to: (i) the breach by Customer of its representation or warranties hereunder; (ii) infringement of a third party’s intellectual property or other rights, including but not limited to relating materials included in the Customer Material or Trademarks; (iii) Customer’s use or misuse of the Services.

11.3 Procedure. The party seeking indemnification will (i) provide the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperate fully with the indemnifying party at its own expense in defending the applicable claim, and (iii) provided that indemnifying party diligently defends the claim with reputable and recognized legal counsel, allow indemnifying party to control the defense and settlement of such claim. No settlement may be entered into without the consent of the party seeking indemnification if such settlement would require any action from or impose any obligation on such party. Subject to the foregoing, the party seeking indemnification will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.

  1. Limitation of Liability. Moburst shall not be liable (whether in contract, warranty, tort (including negligence), product liability or other theory), to the other party or any other person or entity for any indirect, incidental, special, consequential, punitive or exemplary damages or damages for loss of profit, reputation, business or data arising out of this Agreement. In no event shall the aggregate liability of Moburst under this Agreement exceed the total amount of fees actually paid by Customer to Moburst hereunder.

 

  1. Term and Termination. The term of this Agreement shall commence as of the Effective Date and shall continue for a period of one year thereafter (the “Initial Term“). Following the Initial Term, this agreement shall automatically renew for subsequent terms of one year each (each a “Renewal Term” and, together with the Initial Term, the “Term“) unless one of the parties provides the other with written notice of its desire not to renew this Agreement at least 30 days prior to the applicable Renewal Term. Each SOW may contain its own term and termination provisions, and the renewal of this Agreement does not imply the renewal of any SOW beyond the term set forth therein. Either party may terminate this Agreement or any SOW if the other party breaches its obligations under this Agreement or the applicable SOW and does not cure such breach within 5 days of the receipt of written notice thereof. Upon the termination or expiration of this Agreement, or upon termination by Customer, not due to breach by Moburst, of an SOW (a) Moburst shall cease the provision of all Services hereunder, and (b) Customer shall make prompt payment of all amounts due hereunder or under the applicable SOW, including but not limited in respect of any uncompleted work performed by Moburst and in respect of the minimum SOW term, as specified in the relevant SOW. The applicable Service Category Exhibit may contain additional terms regarding the termination of this Agreement. Sections 2 – 18 shall survive the termination or expiration of this Agreement for any reason. Except as otherwise set forth herein or in the applicable Service Category Exhibit or SOW, no party shall have any liability for the termination of this Agreement in accordance with its terms.

 

  1. Contractors; Relationship. Moburst may subcontract its rights and obligations hereunder, provide that Moburst shall at all times retain the responsibility and liability to Customer for the performance of the Services hereunder. The parties are independent contractors and neither party or its personnel shall be deemed an employee, partner, agent or joint venture partner. Each party is solely responsible and liable for the taxes, insurance premiums and employment benefits of its personnel. This Agreement is non-exclusive; nothing herein prohibits Moburst from creating or offering any similar product or service or entering into any similar agreement with any other party.

 

  1. Publicity. Customer agrees that Moburst may disclose that Customer is a customer of Moburst and is receiving the Services, including by displaying Customer’s name, logo and improvement statistics on Moburst’s website and other marketing materials.

 

  1. General. Neither party may assign the Agreement (in whole or in part) without the other party’s prior written consent, which shall not be unreasonably withheld. If either party wishes to assign all of its rights and obligations hereunder in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the assignor’s voting securities or assets, and the other party does not consent to such assignment, then the assignor may terminate this Agreement with 3 days prior written notice. Non-permitted assignments are void. If any provision is found to be unenforceable, it (and related provisions) will be interpreted to best accomplish the parties’ intended purpose, and the remaining provisions of this Agreement shall remain in effect. Headings are for convenience only and will not affect interpretation. Waivers of any breaches of the Agreement must be signed by the waiving party and one waiver will not imply any future waiver. The Agreement will be deemed to have been made in, and will be construed pursuant to the laws of, the State of Israel without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any suit or proceeding arising out of or relating to the Agreement must be commenced in the courts located in Tel-Aviv, Israel, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts.  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 continuing breach of this Agreement. Mobust may provide notices hereunder to the email address provided by Customer upon registration.

 

  1. Entire Agreement; Interpretation. The Agreement (which includes as integral parts any executed or agreed SOWs and all applicable Service Category Exhibits) is the parties’ entire agreement regarding its subject matter and supersedes and cancels all previous agreements and communications (written or oral) relating to its subject matter. No online (clickwrap, browsewrap, or other) posted terms of service or privacy policy of Customer applies to Moburst. In the event of a conflict between the provisions of this Agreement, any Service Category Exhibit or any SOW, then the documents shall be interpreted with the following precedence, and the document with the higher precedence shall control: (a) the applicable SOW, (b) an applicable Service Category Exhibit and (c) the body of this Agreement.

 

 

 

Exhibit A – Product Consulting Services

  1. For purposes of this Exhibit, “Deliverables” means any product designs or specifications created by Moburst in the course of the provision of Product Consulting Services.
  2. Intellectual Property. Subject to the payment by Customer of all amounts due hereunder, and subject to the ownership by Moburst of all underlying Moburst Intellectual Property, all Deliverables created in the provision of Product Consulting Services shall be owned by Customer. If the foregoing is not sufficient to vest in Customer all right, title and interest in the Deliverables then Moburst hereby assigns to Customer, such assignment to be effective only after payment by Customer of all amounts due hereunder, of all Deliverables created by Moburst during the provision of the Product Consulting Services.
  3. Moburst shall provide Customer with the Deliverables in accordance with the timelines set forth in the applicable SOW. Customer shall have 3 days from the date the applicable Deliverables were provided to Customer to examine the Deliverables. If during such 3 day period Customer requests modifications to the Deliverables which are within the scope of workable SOW, Moburst shall modify the Deliverables accordingly pursuant to a timeline mutually agreed between the parties. If during such 3 day period Customer does not make any requests for changes, Customer shall be deemed to have accepted the Deliverables. After implementing the requested modifications, Moburst shall redeliver the Deliverables and the foregoing procedure shall repeat twice. Subsequent to the second redelivery (i.e., the third delivery) of the Deliverables, Customer may only request modifications to the Deliverables to the extent the Deliverables contain material defects or do not materially conform to the agreed specifications, and only within 3 days of redelivery. If the Deliverables do not contain such defects or non-conformities, or Customer does not request modifications for any defects or non-conformities, within such 3 day period, then Customer shall be deemed to have accepted the Deliverables. Customer may not in any event request, and Moburst shall have no obligation to implement, any changes to Deliverables which are not within the scope of work within the SOW. Any use of Deliverables within a production environment shall constitute acceptance thereof. For clarity, unless expressly agreed otherwise on an applicable SOW, payment of all agreed retainer fees shall be made according to the agreed payment schedule without regard to the delivery of any Deliverables.
  4. Additional Terms. All fees in respect of Product Consulting Services are non-refundable.
  5. Moburst makes no warranty that any Services provided shall be useful to Customers’s business. Customer acknowledges that there is no guarantee that the Services will result in any or any additional revenue. Customer retains all responsibility and liability for its products and services, and Moburst does not accept any responsibilities or liability in respect thereof.

Exhibit B – ASO Services

  1. Customer shall cooperate fully with Moburst in the provision of all ASO services, including providing Moburst with (a) Access to and permission to communicate directly with Customer’s developers and designers; and (b) Full access to traffic statistics for analysis and tracking purposes; (c) To the extent Customer wishes Moburst to make submissions or updates of any mobile application to an application store, sufficient access and permissions to make such submissions and updates; (d) All relevant creative materials including logo and screenshots in open format in all requested languages; (e) Customer shall filled out the ASO brief, as provided by Moburst, in a timely manner. If Customer does not provide the foregoing, Moburst may charge an additional fee of US$200 plus VAT or other applicable taxes, per hour in order to produce such materials. For the avoidance of doubt, Moburst inability to provide the Services or part thereof due to Customer’s failure to provide any materials, data, information or access, shall not relieve Customer from its payment obligation.
  2. For purposes of this Exhibit, “Deliverables” means any written report created by Moburst in the course of the provision of ASO services and contemplated in the applicable agreed SOW such as, for example, a report concerning competitors in Customer’s industry, targeted keywords or a review of Customer’s application traffic.
  3. Intellectual Property. Subject to the payment by Customer of all amounts due hereunder, and subject to the ownership by Moburst of all underlying Moburst Intellectual Property, all Deliverables created in the provision of ASO services shall be owned by Customer. If the foregoing is not sufficient to vest in Customer all right, title and interest in the Deliverables then Moburst hereby assigns to Customer, such assignment to be effective only after payment by Customer of all amounts due hereunder, of all Deliverables created by Moburst during the provision of ASO services.
  4. Moburst shall provide Customer with the Deliverables in accordance with the timelines set forth in the applicable SOW. Customer shall have 3 days from the date the applicable Deliverables were provided to Customer to examine the Deliverables. If during such 3 day period Customer requests modifications to the Deliverables which are within the scope of workable SOW, Moburst shall modify the Deliverables accordingly pursuant to a timeline mutually agreed between the parties. If during such 3 day period Customer does not make any requests for changes, Customer shall be deemed to have accepted the Deliverables. After implementing the requested modifications, Moburst shall redeliver the Deliverables and the foregoing procedure shall repeat twice. Subsequent to the second redelivery (i.e., the third delivery) of the Deliverables, Customer may only request modifications to the Deliverables to the extent the Deliverables contain material defects or do not materially conform to the agreed specifications, and only within 3 days of redelivery. If the Deliverables do not contain such defects or non-conformities, or Customer does not request modifications for any defects or non-conformities, within such 3 day period, then Customer shall be deemed to have accepted the Deliverables. Customer may not in any event request, and Moburst shall have no obligation to implement, any changes to Deliverables which are not within the scope of work within the SOW. Any use of Deliverables within a production environment shall constitute acceptance thereof. For clarity, unless expressly agreed otherwise on an applicable SOW, payment of all agreed retainer fees shall be made according to the agreed payment schedule without regard to the delivery of any Deliverables.
  5. Customer acknowledges that Moburst has no control over the policies and ranking algorithms of search engines, and that certain keywords or phrases may subject to competition. Moreover, search engine rankings can fluctuate as a result of on-going changes to the ranking algorithm, or ASO efforts by competitors. As such, Moburst does not guarantee any top or consistent ranking for any particular keyword or search item. Moburst makes no guarantee that the ASO services will improve Customer’s ranking or traffic.
  6. Additional Terms. All fees in respect of ASO services are non-refundable.

Exhibit C – Media Services

  1. Application. An “Approved Application” means the mobile application referred to the SOW. Customer will promptly inform Moburst of any material changes in the themes or content of any Approved Application.
  2. Moburst may suspend Customer’s access to or use of the Service at any time, in its sole discretion, for any improper, unlawful or otherwise fraudulent use of the media services.
  3. Customer Obligations. Customer will not attempt to interfere with or disrupt media services (including by modification of ad tags or any advertisement or the resyndication of any advertisements). Customer is solely responsible for ensuring the continued operation of Customer’s application, implementation of the ad tags and display of advertisements. Customer is entirely responsible for the security of its mobile applications.
  4. Customer further agrees to post a privacy policy that: (i) discloses the use of, as applicable, cookies, web beacons and similar tracking technologies on Customer’s mobile applications and; (ii) complies with all applicable laws, regulations and best practice standards.
  5. Customer Warranties. Customer represents and warrants that: (a) it owns without restriction, or has obtained all necessary license rights, to all content, including without limitation, text, images and video, published on or through Customer’s application sufficient to permit Moburst to display advertising pursuant to this Agreement; (b) Customer’s use of the media service will be in compliance with all applicable laws and regulations; (d) it will not fraudulently or purposely manipulate the content of Customer’s application in such a manner that may result in the serving of less contextually relevant advertising; and (e) it will not: (i) generate fraudulent, automated or otherwise invalid actions, clicks or impressions; (ii) use robots or other automated query tools or computer generated search requests or any other search engine results optimization techniques or software unless authorized by Moburst; or (iii) authorize a third party to do any of the foregoing.
  6. Customer acknowledges that there is no guarantee that any minimum level of revenue, or any revenue, will be generated as a result of this agreement and Customer’s use of the media service.
  7. Additional Terms. The minimum payment in respect of each media campaign is US$4,500. All payments in respect of media commissions are non-refundable. As such, media commissions are payable even if Customer cancels or terminates a campaign. If Customer shifts the dates of any campaign by more than 2 weeks, Customer shall compensate Moburst for committed resources in the amount of 30% of any applicable media commission. Customer agrees that the foregoing represents reasonable compensation to Moburst. All shifts in campaign dates are subject to the prior consent of Moburst.

Exhibit D – Creative and Production Services

  1. For purposes of this Exhibit, “Deliverables” means any works of authorship or audio-visual works created by Moburst in the course of the provision of Creative services and Production services and which the applicable SOW contemplates the creation of in the context of the services provided by Moburst pursuant to such SOW.
  2. Intellectual Property. Subject to the payment by Customer of all amounts due hereunder, and subject to the ownership by Moburst of all underlying Moburst Intellectual Property, all Deliverables created in the provision of Creative services and Production services shall be owned by Customer. If the foregoing is not sufficient to vest in Customer all right, title and interest in the Deliverables then Moburst hereby assigns to Customer, such assignment to be effective only after payment by Customer of all amounts due hereunder, of all Deliverables created by Moburst during the provision of the of Creative services and Production services.
  3. Moburst shall provide Customer with the Deliverables in accordance with the timelines set forth in the applicable SOW. Customer shall have 3 days from the date the applicable Deliverables were provided to Customer to examine the Deliverables. If during such 3 day period Customer requests modifications to the Deliverables which are within the scope of work set forth in the applicable SOW, Moburst shall modify the Deliverables accordingly pursuant to a timeline mutually agreed between the parties to the extent the Deliverables contain material defects or do not materially conform to the agreed specifications. If during such 3 day period Customer does not make any requests for changes, Customer shall be deemed to have accepted the Deliverables. After implementing the requested modifications, if applicable, Moburst shall redeliver the Deliverables.  Thereafter, Customer may request additional modifications only pursuant to an agreement with Moburst, and the payment of an additional fee in an amount of US$200 plus VAT or other applicable taxes, per hour. Customer may not in any event request, and Moburst shall have no obligation to implement, any changes to Deliverables which are not within the scope of work within the SOW. Any use of Deliverables within a production environment shall constitute acceptance thereof.
  4. Additional Terms. All fees in respect of Creative and Production services are non-refundable.