Celltick Technologies Ltd.
Mobile SDK and/or API Online Terms and Conditions
By accessing and using the Celltick Technologies Ltd. (" Celltick") mobile SDK and/or API platform, you are indicating that you read the terms and conditions hereunder and that you agree to be bound by the terms and conditions hereunder, as updated from time to time.
If you are entering into this Agreement on behalf of a legal entity, you represent and warrant that you are authorized to bind such legal entity to the terms and conditions of this Agreement, following which the terms used to describe you under this Agreement (such as "you" and/or "your") shall be deemed to apply to the legal entity which you represent. If you are not authorized by the said legal entity to bind the said legal entity to the terms and conditions of this Agreement, you may not agree to the terms and conditions herein and you may not access our mobile SDK and/or API platform. We recommend that you save a copy of this Agreement for your records.
You may not access our mobile SDK and/or API platform, if: (a) you are our direct competitor, except with our prior written consent; or (b) you accept this Agreement for purposes of analyzing and testing its availability, performance or functionality, or for any other competitive purposes.
BY CLICKING "SIGN UP" (OR SUCH OTHER SIMILAR LANGUAGE) AND/OR BY ACCESSING OUR MOBILE SDK AND/OR API PLATFORM, YOU ARE CONSENTING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY SUCH TERMS AND CONDITIONS, INCLUDING BUT WITHOUT LIMITATION, YOU CONFIRM THE COMPLETE CORRECTNESS AND APPROVAL OF THE REPRESENTATIONS AND WARRANTIES IN THE PARAGRAPH IMMEDIATELY ABOVE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR TO ANY PART THEREIN AND/OR IF YOU ARE NOT ABLE TO FULLY CONFIRM THE WARRANTIES IN THE PARAGRAPH IMMEDIATELY ABOVE, YOU MAY NOT ACCESS OUR MOBILE SDK AND/OR API PLATFORM AND YOU MAY NOT USE OUR MOBILE SDK AND/OR API PLATFORM.
Celltick reserves the right to modify, discontinue or terminate the SDK and/or API platform or any part thereof, or to modify this Agreement at any time, without prior notice. Any update of this Agreement will be posted on our site at www.thestartscreen.com. In the event that the change to the Agreement shall be a material change, we may send you a notice of such change, but we are not obligated to do so. It is, however, your responsibility to review the Agreement from time-to-time to check for updates. By continuing your access and use of the Celltick SDK and/or API platform you are construed to have accepted and approved any change made to the Agreement immediately prior to such access and/or use. If you do not accept and/or approve any change to the Agreement at any time, you sole recourse would be to cease use of our SDK and/or API platform.
When you register to the use of our SDK and/or API platform we will provide you with a username and password, which will enable you to access your account (the " Account"). In connection thereto, you agree: (a) to keep your password secure and confidential; (b) not to permit others to use your Account; (c) not to transfer or assign your Account's password to a third party; (d) you are solely responsible for actions taken in your Account, and we will not be liable for any loss or damage arising from any unauthorized use of your Account or any other breach of security relating to the Account. On becoming aware of any unauthorized use and/or breach of your Account, you undertake to immediately and without delay notify us.
1. The following capitalized terms shall have the following meaning:
- "API" means Celltick's API and associated protocols provided by Celltick to you that, when implemented on your Platform (defined below), shall manage the display of the Start Magazine.
- "Ad(s)" means advertisement in the form of text-based, graphical, interactive, rich media and video, or other digital advertisements.
- "Claims" means claims, suits, demands and actions brought or tendered for defense or indemnification.
- "Content" means graphical, textual and/or auditory content (which may include text, data, information, photos, images and graphics, audio, video or other content). "Content" shall also include Ad(s).
- "Confidential Information" means non-public information of Celltick, regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity does or should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, client list, developments, business partners or other information disclosed by Celltick to you, either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information shall not include information which you can demonstrate that: (a) was known to you or was in your possession at the time of disclosure without any confidentiality obligation; and/or (b) becomes publicly known and made generally available after disclosure by Celltick through no wrongful action or inaction on your part or any party acting on your behalf.
- 6"Fraudulent Activity" means initiating or using content that: (i) violates applicable law or regulation; (ii) violates this Agreement; (iii) hacking or phreaking; (iv) contains any virus, worms, Trojan horses, or any other computer code, files or programs designed to interrupt, hijack, malware, spyware, spam-ware, destroy, limit or adversely affect the functionality of any computer software, mobile device, hardware, network or telecommunications equipment; (v) encouraging or incentivizing Users to visit, click or use content for the purpose of generating views, actions or revenues in an illegal manner, or artificially inflating views, actions or revenues; (vi) uses or employs any misleading, fraudulent or inappropriate practices that may deceive Users (including, but not limited to mimicking user device's or operating system's notifications or warnings, providing unproven or misleading endorsement or making false or misleading claims about the state of the user's system); (vii) using or employing any automated means or non-human audience (such as bots) for the purpose of generating views, actions or revenues.
- "Intellectual Property Rights" - means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law and any and all other proprietary rights, as well as any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
- "Insertion Order" or " IO" means a mutually agreed document that incorporates this Agreement, and contains specific instructions regarding the services provided herein.
- "Losses" means damages, losses, costs, and liabilities, including reasonable attorney and professional fees, arising from a Claim.
- "your Content"means any and all Content, which is not the Start Magazine and/or Content displayed therein, that is published on your Platform.
- "your** Platform**"means your proprietary owned and/or licensed technology/ies (such as websites and/or mobile apps), indicated in the IO or on your Account, which inter-alia is used by you to publish Content on mobile devices.
- "Prohibited Activity" means Fraudulent Activity and any activity or use of content that encourages conduct that is or may be deemed as: (a) a criminal offense or could give rise to civil liability, or violates any applicable law, regulation or order of any court or tribunal; (b) adversely affecting public or private infrastructure or equipment; (c) infringing upon any third party right including without limitation, intellectual property rights, privacy rights or moral rights; and (d) using, endorsing or promoting content which may be reasonably deemed as adult content, vulgar, sexually explicit, obscene, profane, racist, offensive, harassing, threatening, infringing, excessively violent, libelous, gambling-related, or discriminatory activity, promotes illegal drugs or arms trafficking, counterfeiting money, violates export control laws, misleading or deceptive material, or is any type of malware or spyware.
- "your Account" means a personal account designated to you in order to utilize the services that we offer under this Agreement, which includes, inter alia, your Platform details and its performance, analytics, rate and any other information or features that we may add, in our sole discretion.
- "SDK" means a software development kit licensed by Celltick to you for the purpose of providing the User access to the Start Magazine, as embedded by you on your App Platform.
- "Start Magazine" means a certain magazine format Content made available by Celltick to Publisher for publishing on the Publisher Platform, which Content is original to Celltick and/or licensed by Celltick from third parties (such as but not only, content providers and/or aggregators), but specifically excluding the Publisher's Content.
- "Users" means the Partner's Platform users.
2. Our Responsibilities
Subject to the terms and conditions herein, we will make our SDK and/or API available to you, and such other services related thereto and as listed in the Agreement hereunder. We use industry standard data security measures to maintain the security and confidentiality of the data and information that is part of your Account, but we do not and cannot guarantee that storage of any data relating to you, your Platform and/or your Users, will be secured at all times, and we will not be responsible for any unauthorized access to or alteration to your and/or any other person's data or information from or in connection with your Platform and/or your Account.
Subject to the terms hereof, you shall place the Start Magazine in mutually agreed locations on your Platform.
4. License Terms
- During the Term, Celltick grants you a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sub-licensable license solely for the limited purpose of enabling Users to access the Start Magazine embedded in your Your use of our API or SDK, as the applicable case may be, shall be in accordance with the API and/or SDK implementation guidelines, provided by Celltick from time to time.
- During the term, Celltick grants you a limited, non-exclusive, royalty-free license to use and display our trademarks, service marks and logos (collectively, " Marks"), within your Platform and strictly in accordance with the obligations and rights hereunder. All goodwill arising out of your use of any of the Marks shall inure solely to the benefit of Celltick.
- The licenses granted under this Agreement are specifically set forth herein; there are no other express and/or implied rights. All rights not expressly granted to a party in this Agreement are reserved by the other party. Without limiting the generality of the foregoing, you acknowledge that the SDK and/or API, and any part thereof, is commercially valuable and proprietary to Celltick, and you undertakes not to: (a) reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the SDK and/or API's source code, or part thereof; (b) modify, revise, enhance, or alter the SDK and/or API; and (b) copy or allow copies of the SDK and/or PI to be made.
- During the term, you shall be paid by Celltick a percentage as set forth in the Insertion Order of the Net Revenue generated by your Users who accessed and viewed the Start Magazine via your Platform (" your Share").
"Net Revenue" means the total revenue attributable to Content within the Start Magazine that has been accessed via your Platform, such as from Ads therein, sponsored content, etc., actually collected by Celltick, less charge backs, refunds and taxes. Moreover, Net Revenue shall not include revenue generated as a result of a direct and/or indirect in breach of Section 6.3 and/or 6.4 below.
- Notwithstanding anything else to the contrary set forth in the Agreement, you acknowledge and agree that we shall have no obligation to pay you any Consideration with respect to amounts generated as a result of: (a) your breach of any of the terms and conditions of the Agreement; and/or (b) your breach of any applicable laws, rules and/or regulation and/or a Forbidden Activity and/or a Fraudulent Activity. We may withhold and/or offset (as we shall deem appropriate, in our sole discretion) the relevant portion of your Share due to you or any portion of any of your Share previously paid to you in respect of any matter under subsection (a) and (b) of this Section 5.2.
- Calculations of your Share shall be based solely on our tracking and reporting platform. Payment of your Share shall be made within sixty (60) days after the end of each calendar month, in U.S. You hereby agree that our failure to remit payment which is cured within ten (10) business days after the due date, and provided that we received a written notice from you to this effect, shall not be considered as a breach of our payment obligation hereunder. We shall not be required to pay you until such time that your Share at least equals Two Hundred and Fifty U.S. Dollars (US$ 250), and such amount shall accumulate until such time as the payment due to you exceeds Two Hundred and Fifty U.S. Dollars (US$250).
- Your Account includes a dashboard where you will be able to view reports regarding the number of impressions, clicks, eCPM rates and your then current estimated share in the Gross Revenue (the " Dashboard"). The Dashboard is provided to you for convenience purposes only and we are not liable for any unavailability or inaccuracy, temporary or otherwise, of the Dashboard. You acknowledge and agree that the manner in which the Dashboard reports are generated (the " Reports"), including without limitation, the manner in which your Share is calculated and presented therein may be modified and/or altered by us at any time without prior notice. For the removal of any doubt, the Reports shall be considered a part of our Confidential Information.
- If you wish to dispute the calculation of your Share, you will be required to provide us with a written notice (via e-mail to the address set forth in the Insertion Order) specifying the reasons for the dispute with as much detail as possible (the " Dispute Notice"), by no later than seven (7) days of delivery of the applicable calculations to you, whether provided in a Report or otherwise. If such Dispute Notice is not delivered to us within the applicable timeframe, such calculations shall be deemed accepted and agreed by you. Following receipt of a Dispute Notice, the parties will cooperate, in good faith, in order to resolve any such dispute.
- You shall bear all applicable taxes, including without limitation, value-added, customs fees, import duties or other taxes and duties imposed by any governmental authority imposed on you with respect to your Share. If your Share is subject to withholding of income taxes and similar deductions, to the extent required by applicable law, Celltick shall withhold such tax in accordance with a certificate of withholding provided you, or in the absence thereof, in accordance with applicable law. Payment shall be calculated based entirely on records maintained by Celltick. You agree to refund us any portion of your Share that was paid to you and is subject to chargeback or other fees we may have paid following payment to you
6. Your Representations; Warranties and Obligations
- You represent and warrant, that: (a) you are duly and fully authorized to be bound by this Agreement and that all corporate authorizations and/or consents required in order to enter this Agreement, if any, have been duly obtained; (b) the execution and delivery of this Agreement, and your performance of your obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which you are a party or any of your affiliates are a party or violate any rights of any third parties arising therefrom; (c) you will not make any representations, warranties and/or guarantees with respect to the Celltick SDK and/or API as set forth herein and/or about us and/or on our behalf, nor will you bind us to any agreement, without our explicit and prior written approval; (d) your Platform, including your Content therein, is wholly owned by you and/or is validly and lawfully licensed to you, and does not infringe or violate any right of any person, including Intellectual Property rights.
- You represent and warrant that you: (a) are the owner or the legal licensee of your Platform, including: (i) the Content therein; and (ii) any trademarks and/or Intellectual Property rights therein; (b) are of a legal age according to the laws, rules and/or regulations applicable to you and of the country in which you reside or from which you access the Celltick SDK and/or API as set forth herein, and in any event are not under the age of 13; (c) are not currently restricted from using the Celltick SDK and/or API as set forth herein, or not otherwise prohibited from having an account with us; and (d) will only provide us with accurate information in connection with your use of the Celltick SDK and/or API as set forth herein.
- You represent and warrant that you will not use or employ any form of mass unsolicited electronic mailings, newsgroup postings, IRC postings, adware, spyware, malware marketing or any other form of "spamming" as a means of promoting Content and the Start Magazine, or for the purpose ofgenerating traffic to or for your Platform. You further acknowledge and agree that Celltick has the right to immediately, and without notice, terminate the Agreement, if we, in our sole and absolute discretion, conclude that you have engaged in the use of any form of mass unsolicited electronic mail, newsgroup postings, password selling or trading, warez, IRC posting, adware, spyware, malware marketing or any other form of "spamming". If you wishe to send traffic via electronic mail promotion, you must do so in compliance with the CAN-SPAM Act f 2003 (" CAN-SPAM") and all laws, rules and regulations applicable to the territory in which you operate in.
- You acknowledge and agree that we have no obligation to monitor, supervise or review your Platform and/or the your Content and/or the practices deployed by you, and Celltick is not and will not be responsible for any content appearing or otherwise distributed on, at or in association with your Platform.
7. Term And Termination
- This Agreement will commence on the first date on which you accept it, and will continue in perpetuity unless it is terminated as set forth herein (the " Term").
This Agreement may be terminated in accordance with any of the following provisions:
Either party may terminate this Agreement upon five (5) days' prior written notice, for any reason and without liability.
- We may terminate this Agreement immediately, if you: (i) breach any of your obligations, representations and/or warranties herein contained and do not cure such breach within 10 days of receipt written notice thereof, or (ii) become insolvent or make any assignment for the benefit of creditors, or have any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within thirty (30) days of such filing, or have a trustee, administrator or receiver appointed for a material portion of its business or assets. If you become subject to any of the foregoing events you will immediately provide us with written notification thereof. We may immediately block your access to your Account, temporarily or permanently, suspend your Account or terminate this Agreement, withhold any payment due hereunder to the extent determined by us in addition to any other remedies that may be available to us under this Agreement, if you engage in any acts prohibited by this Agreement.
- Upon the termination of this Agreement, for any reason: (a) all your rights and licenses granted herein shall terminate immediately; (b) your right to use SDK and/or the API and any related services thereto and/or any part thereof, will terminate and, if integrated with your Platform, you must promptly remove and delete the SDK and/or the AP from your Platform and systems and destroy all copies of the SDK and/or the API, as applicable; (c) your access to the your Account will be blocked; (d) you shall promptly return our Confidential Information, or destroy and certify the destruction of all of our Confidential Information. We will not be liable to you or any person for the termination of this Agreement or termination of your access to your Account and we will have no obligation to maintain any information stored in our data centers related to you and/or to your Account, or to forward any information to you or any person following the effective date of termination of this Agreement. Following the termination of this Agreement or suspension of your Account, any information which is related to the your Account may no longer be accessed by you.
- Anything to the contrary notwithstanding, the following sections shall survive the expiration or termination of this Agreement for any reason: 1, 4.3, 4.4, 6, 7.3, 7.4, 8, 9, 10 and 11.
8. Our Warranties and Liability
8.1 The SDK and/or the API and any services provided to you by Celltick under this Agreement and/or in connection thereto are provided on an "AS-IS" basis. Except as expressly provided in this Agreement and to the fullest extent allowable by applicable laws, rules and/or regulations, Celltick makes no other warranty of any kind, express, implied, statutory or otherwise, including without limitation, warranties of merchantability, fitness for a particular use or non-infringement or those arising in the course of or connected to the performance hereunder, and Celltick disclaims any such warranties. Furthermore, Celltick does not represent or warrant that: (a) the SDK and/or the API and any services provided to you by Celltick under this Agreement and/or in connection thereto or any part therein, will be uninterrupted, error free or that any errors will be corrected; or (b) the SDK and/or the API and any services provided to you by Celltick under this Agreement and/or in connection thereto is and will remain free of viruses, worms, or any other harmful components or program limitations or non-infringement (c) you will profit or derive any economic benefit from your use of the SDK and/or the API and any services provided to you by Celltick under this Agreement and/or in connection thereto. Some states or jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply.
8.2 IN NO EVENT WILL CELLTICK AND/OR OUR SUBSIDIARIES, SHAREHOLDERS, DIRECTORS, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND PERMITTED ASSIGNEES (COLLECTIVELY, THE " CELLTICK GROUP") BE LIABLE TO YOU OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR REVENUES AND ANY DAMAGES FOR THE USE OR INABILITY TO USE OUR SDK AND/OR API AND/OR ANY SERVICES WE PROVIDE YOU UNDER THIS AGREEMENT AND/OR IN CONNECTION THERETO, OR ANY PART THEREOF, LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE CELLTICK SDK AND/OR API, OR ANY PART THEREIN UNDER ANY THEORY OF LIABILITY, INCLUDING FOR CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE CELLTICK GROUP WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
8.3 IN NO EVENT SHALL THE CELLTICK GROUPS' AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED ONE THOUSAND U.S. DOLLARS (US$1,000). THE USE OF THE CELLTICK SDK AND/OR API AND/OR ANY SERVICE OFFERED BY CELLTICK UNDER THIS AGREEMENT AND/OR IN CONNECTION THERETO OR ANY PART THEREOF IS ENTIRELY AT YOUR OWN RISK, AND CELLTICK SHALL HAVE NO LIABILITY RELATING TO SUCH USE.
- You shall defend, indemnify and hold harmless the Celltick Group from and against any and all Claims threatened, asserted or filed, brought or made by any person against the Celltick Group arising from: (a) your use of the Celltick SDK and/or API and/or any services provided to you by Celltick per this Agreement and/or in connection thereto, including for any Losses, whether direct, indirect, special or consequential, that may be cause to any person as a result thereof; (b) your breach or alleged breach of any warranty, representation or obligation made by you under this Agreement; (c) your violation of any person's rights, including End Users' right of privacy; and (d) Users' use of your Platform. You shall promptly notify us of any Claim. You shall have full control and sole authority over the defense and settlement of a Claim; provided, however; that any settlement will be subject to our prior approval and provided further that you shall not assume the control of the defense of a Claim to the extent that we determine that (i) a Claim relates to our technology, (ii) any relief other than monetary damages is sought against us, or (iii) there may be a conflict of interest between you and us in the conduct of the defense of a Claim, and in each such event the costs of defense will be considered "Claims" as defined above. The Celltick Group may join in the defense of a Claim with counsel of its choice at its own expense.
- 1During the Term and thereafter, you agree that you shall not disclose or use the Confidential Information without Celltick's prior written consent. You agrees to take reasonable steps, at least substantially equivalent to the steps you take to protect your own Confidential Information, during the Term and for a period of seven (7) years thereafter to prevent the disclosure of the Confidential Information other than to your employees, who must have access to such Confidential Information to perform your obligations or exercise your rights hereunder.
- This Agreement will be governed by the laws of the State of Israel, without regard to conflict of law provisions. The parties both agree to submit to exclusive jurisdiction in the State of Israel and the exclusive venue in the courts of Tel Aviv-Jaffa, Israel. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its reasonable costs and attorneys' fees.
- The parties are independent contractors, and nothing in this Agreement will be construed to create a partnership, joint venture, agency or other relationship between the parties.
- No failure or forbearance by a party to enforce any of its rights under this Agreement or insist upon performance of the other party's obligations under this Agreement will be deemed a waiver of such rights or obligations to any extent, and no waiver by either party of any default or breach of the Agreement will constitute a waiver of any other or subsequent default or breach.
- This Agreement may be amended, modified or superseded, only by a written instrument signed by the parties hereto.
- The headings herein and in the Agreement are for the convenience of reference only and have no legal effect.
- If any provision in this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
- This Agreement may not be assigned or transferred by a party hereto without the other party's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect.
- All notices required or permitted under this Agreement shall be in English and in writing. Notices shall be delivered as follows: (a) to us – by e-mail, registered or certified mail (postage prepaid) or by overnight courier service, at the address set forth on the Celltick internet site, and (b) to you by e-mail to address associated with your Account. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via e-mail, (iii) within one (1) business day of being sent by overnight courier, or (iv) within three (3) business days of being sent by registered or certified mail. For purposes of the foregoing, you agree that we may rely upon the e-mail address you provided as part of your Account and that we will not be responsible for delays in the delivery of e-mails which delays are not associated with your mail server.
If you have any questions (or comments) concerning the Agreement, please contact us at: Ask@thestartmagazine.com.
Last modified: February 13, 2017