Distribution Terms & Conditions

• DEFINITIONS

1. 1. “Advertising Material” means any link, URL, creative, landing page, data, text, images, or other content (including any Intellectual Property incorporated therein) used as, or as part of an advertisement or any other fashion by which Distributor distributes the Bundle.
   2. “Bundle” means a bundle of software provided by Company for Distributor to distribute under this Agreement.
   3. “Confidential Information” means any information of the disclosing Party whether or not in tangible form, of a private, secret, proprietary or confidential nature, or treated by the disclosing Party as such (including by marking such information as confidential or by informing the receiving Party in writing of such disclosure of Confidential Information), including but not limited to: (1) any deliverables provided by a Party under this Agreement, including but not limited to the Deliverables; (2) any reports or invoices delivered by a Party under this Agreement; (3) information relating to a Party’s business or financial affairs; (4) marketing strategies of a Party; (4) lists of customers, suppliers and service providers of a Party; or (5) any information of any Third Party as to which the disclosing Party owes a duty of confidentiality. Confidential information shall not include any information that the non-disclosing Party can verify with substantial proof: (1) is generally available or known to the public through no wrongful act of the non-disclosing Party; (2) was independently developed by the non-disclosing Party; or (3) was disclosed to the non-disclosing Party by a Third Party under no obligation of confidentiality to such Party.
   4. ”End User(s)” means an individual(s) who downloads and installs the Bundle or a Software as a direct result of Distributor Services.
   5. “EULA” or “TOS” means an End User License Agreement or Terms of Service to which End Users must provide their assent as part of the Software installation process.
   6. “Fraudulent Activity” means any of the following: (a) automated, fraudulent or fictitious downloads or installations of a Software; (b) automated and/or fraudulent clicks on any Advertising Materials; (c) installing or uninstalling any program on or from End User’s device, without the End User’s prior express consent, or any other similar practices; (d) incentivizing any person to, or engaging in any activity that is likely to inflate the number of installations or use of any automated program in order to generate Software installations; and (e) using any practice of distribution or installation that contains or considered as a virus, worm, malware, spyware, ransomware, crapware, trojan horse, or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment; and (f) any type of unwanted or unaware installation by End User (including but not limited to auto install, direct install, drive by install, post bundle install or any other way of installation without an action and consent by End User;
   7. “Ineligible Installation” means any installation of a Software that: (a) exceeds the daily cap as stipulated in the IO (as applicable); (b) results from distribution of the Software through any of the Prohibited Websites listed in the IO (as applicable) or from any of the Prohibited Territories stipulated in the IO; (c) results from any Fraudulent Activity; (d) results from any breach or violation of this Agreement; (e) is re-installed by an End User who previously uninstalled the Software from the same device; or (e) violates any of Company Guidelines; (f) results from any act or omission that Company deems as violating any applicable law, regulation or the Company Guidelines;
   8. “Intellectual Property” means trade names, logos, trademarks, service marks, trade dress, internet domain names, copyrights, patents, trade secrets, know-how and proprietary technology, either registered or unregistered, which is currently owned by a Party or which may be developed and/or owned by it in the future.
   9. “Eligible Installation” means the complete and successful installation of Software by an End User as a result of acceptance of an Offer and as a result of the Distributor Services, excluding any Ineligible Installation. 
   10. “PPI” means Pay Per Install.
   11. “Privacy Policy” means a Software’s privacy policy that governs the collection, use and disclosure of information by a Software owner or developer as a result of an End User’s installation of the Software.
   12. “Offer” means an offer of a Software to an End User (including as part of a Bundle).
   13. “Main Offer” means the first offer of a bundle of a software that End User elected to install and trigger the full Bundle, which will be the first offer. (may also be known or referred to  as “Carrier”). 
   14. “Company Guidelines” shall mean the most current version of Company’s Distribution and Traffic Quality Guidelines available at: https://www.avantisteam.com/distribution-trafficquality-guideline/ and incorporated by reference to this Agreement.
   15. “Search Offer” means an Offer of a Software with functionality that pertains to an End User’s search functionality.
   16. “Software” means a downloadable application or software to be promoted, offered and distributed by Distributor to End Users under this Agreement excluding the main offer (i.e. only monetizing offers).

• SCOPE OF THE SERVICE

1. 1. Company will provide Distributor with a Bundle to distribute in the OS (as defined in the IO) environment.
   2. Distributor shall use its best efforts, knowledge, connection and expertise to distribute the Bundle, make the Offers available to End Users and derive Eligible Installations, including by undertaking all necessary marketing activities to attract End Users to download and install the Software on their device (the “Distribution Services“).
   3.  Distributor commits to focus on quality traffic sources and represents that it shall not use any Fraudulent Activity as part of the Distribution Service. 
   4. Distributor shall not distribute the Bundle together with other third party bundle that includes any software that may collide, contradict or revoke the functionality or value of any Software in the Bundle.

• REPORTING AND CONSIDERATION

1. 1. Consideration
      1. In consideration for the Distribution Services, Distributor will be compensated according to the Pricing Model (as stipulated in the IO) basis for each Eligible Installation calculated according to the Rates per Geo as stipulated in the IO (under Payment Mechanism), subject to any daily caps stipulated in the IO (the “Consideration”). Consideration will be paid on a monthly basis within thirty (30) days following the completion of each calendar month during which Distributor performed the Distribution Services resulting in Eligible Installations.
      2. For the avoidance of doubt, Distributor will not be entitled to any compensation for Ineligible Installations and Company reserves the right to withhold any payment based on reports for Ineligible Installations.
   2. Reporting
      1. The Consideration will be calculated based on Company’s records, produced by its system. Company’s system will count each installation, will identify those Eligible Installations per Territory and per End User and will display the earnings generated as a result of the Eligible Installations. Company’s system and records will be deemed as final and accurate. Company will send a pixel to Distributor’s URL (as provided by Distributor to Company) for each Eligible Installation generated by Distributor and will provide Distributor with an access to its relevant excerpts from its reporting system in a form determined by Company (the "Report").
      2. Distributor acknowledges that bugs, errors, or inaccuracies in the Report may occur to which will be out of Company’s control and responsibility.  As a result, all reports may be updated and adjusted up to 7 days back.
      3. If Distributor disputes the information detailed in the reports, it will provide Company with a written notice which shall include the reasons for such dispute with as much details as possible, by no later than seven (7) days as of receipt of such report (“Discrepancy”). Following receipt of a dispute notice, Company shall make its best efforts to check such matter and reply within a reasonable frame of time. In any event, Distributor will bear up to 10% discrepancy and the parties will only discuss on those Discrepancies which are over 10%. Distributor acknowledges and agrees that if no dispute notice is received by Company with respect to an applicable report during the above mentioned 7 days period, then such report will be considered as final and non-appealable. Company may withhold payment of any disputed amounts until the dispute is resolved.

• LICENSE

1. 1. Subject to the terms and conditions of this Agreement, Company hereby grants Distributor a limited, fully revocable, non-exclusive, non-transferable, non-assignable, non-sub-licensable, royalty-free, limited license, during the Term of this Agreement and only in the agreed Territories to: (a) distribute the Bundle (including the Software and the Offers) solely for the purposes determined under this Agreement; (b) use, display and perform the Intellectual Property included in the Offers solely for marketing and promoting the Bundle in connection with delivery to End Users through the Distributor Services; and (c) download and view the weekly reports provided by Company.
   2. Except as expressly specified under this Agreement, Distributor will not use the Bundle (including any Software and/or Offer) in any other manner or for any other use or after termination of this Agreement and will not copy, create derivative works of or modify the Bundle, Software or Offers unless expressly permitted by Company.

• REPRESENTATIONS AND WARRANTIES

1. 1. 5.1.Each Party represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required hereunder; (b) the execution of this Agreement by each Party and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each Party, enforceable against each Party in accordance with its terms.
   2. Distributor hereby represents and warrants that Distributor, the Distribution Services and any related technology, materials and services: (a) are and will at all times during the Term in compliance with applicable laws, regulations and industry best standards; (b) are in compliance with all Company Guidelines; (c) are error and defect free, excluding to certain normal downtime that will be repaired by Distributor within reasonable time; (d) are not include, contain, facilitate or otherwise engaged with Fraudulent Activity; (d) do not infringe upon or violate the rights of any third party, including intellectual property and privacy rights. Distributor also represents and warrants that any Advertising Material used as part of or in connection with the Distribution Service shall comply with the privacy policy. 
   3. Except for the warranties specifically stated in this section 5, all Software, Offers and other materials are provided by Company on an “as-is” and “as available” basis and Company hereby expressly excludes and disclaims all warranties of any kind whatsoever relating to a Software, Offer and other related materials. Further, Company does not warrant that any Software, Offer or other related materials will meet Distributor’s or End User’s requirements, or that the operation of a Software or the full Bundle will be uninterrupted or error or bug free. Company specifically disclaims all warranties, express or implied, including without limitation any implied warranty of merchantability, fitness for a particular purpose, non-infringement of intellectual property rights, and any implied warranties arising from course of dealing or course of performance.

• TERM AND TERMINATION

1. 1. The term of the Agreement will commence as of the Effective Date set forth in the IO and will continue until the Termination Date specified in the IO, or as terminated by the Parties under this Section.
   2. Either Party may terminate this Agreement without liability for any reason or no reason upon 72 hours written notice to the other Party.
   3. Company may terminate this Agreement immediately with notice if Distributor: (a) materially breaches this Agreement or (b) becomes insolvent, ceases to do business as a going concern, makes an assignment, composition or arrangement for the benefit of its creditors, or admits in writing its inability to pay debts, or if proceedings are instituted by or against it in bankruptcy under applicable insolvency laws, or for receivership, administration, winding-up or dissolution (other than in the course of a solvent reorganization or restructuring approved by the other party to this Agreement.
   4. Notwithstanding the foregoing, Company may immediately terminate this Agreement if: (a) Distributor does not comply with any of the Company Guidelines or any representation or warranty found in this Agreement, or (b) if Distributor engages in any action or activity that, in Company’s sole discretion, evidences Fraudulent Activity or reflects poorly on Company or devalues Company’s reputation or goodwill. Company shall not be liable to Distributor or any Third Party for the termination of this Agreement
   5. Upon any termination of this Agreement, all licenses granted hereunder will immediately terminate, and each Party will promptly return to the other or destroy (and provide adequate proof of such destruction or permanent deletion), any Software, Offer or Confidential Information (or copies thereof) in such Party’s possession, whether in tangible or electronic form. Distributor will also immediately cease all further promotion and distribution (as applicable) of the Bundle as a whole or a Software and/or Offer.
   6. All provisions of the Agreement which by their language or nature should survive the termination of this Agreement, as well as all provisions relating to: data ownership; intellectual property; representations and warranties; confidentiality; indemnification; disclaimers of warranties; limitations of liability and the general terms will survive the termination of this Agreement.

• CONFIDENTIALITY

1. 1. During the term of this Agreement the Parties may have access to certain non-public, Confidential Information of each other. During the Term of this Agreement and thereafter, each party agrees: (a) not to disclose a disclosing party’s Confidential Information to any Third Parties other than to its shareholders, directors, officers, partners employees, advisors or consultants (collectively, the “Representatives”) on a “need to know” basis only and provided that such Representatives are bound by written agreement to comply with the confidentiality obligations contained herein; (b) not to use any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; and (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care.
   2. The Parties agree that the content and existence of this Agreement and the nature of the relationship between the parties shall not be disclosed without the mutual written consent of both parties prior to such disclosure.
   3. Each Party may disclose Confidential Information of the other Party as necessary to comply with the requirements of legal or administrative process, provided that such Party provides the other Party with reasonable advance written notice of any such intended disclosure and cooperates reasonably with its efforts to obtain a protective order.
   4. This Confidentiality section shall survive any termination or expiration of this Agreement.

• LIMITATION OF LIABILITY

1. 1. The Bundle, the software, the offers, the  Company’s Trademarks are provided by Company on an "as-is" and “as available” basis. Except as expressly provided in this Agreement and to the fullest extent permitted by applicable law Company disclaims all warranties of any kind, expressed, implied, statutory or otherwise, including without limitation any implied warranty of merchantability, fitness for a particular purpose, non-infringement of intellectual property rights, and any implied warranties arising from course of dealing or course of performance. Company does not warrant that the Bundle, the software, the offers, technology or services available therein will be provided without interruptions or shall be error free or that any errors will be timely fixed; or that Distributor will profit or derive any benefit from Distributor’s use of the Platform and the Ads.
   2. In no event will Company or its Representatives be liable for any consequential, indirect, special, exemplary or punitive damages arising out of or related to this Agreement, including but not limited to damages for lost data, lost profits or revenues, loss of goodwill, service interruption, computer damage or system failure, software or costs of procurement of substitute goods or services, arising out of or in connection with this Agreement based on contract or tort (including products liability, strict liability and negligence), and whether or not Company should have reasonably foreseen 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. If applicable law limits the applicability of this limitation of liability section, then Company’s liability shall be limited to the maximum extent possible by applicable law.
   3. The total liability of Company under this Agreement shall not exceed the total amount of fees made under this Agreement during the nine 9) months preceding any claim under which such liability shall arise.

• PROPRIETARY RIGHTS

1. 1. Nothing contained in this Agreement will grant Distributor any right, title or interest in the Intellectual Property Rights of Company other than the limited license grants provided herein.
   2. Without derogating from the generality of the foregoing, Company retains all ownership and Intellectual Property rights in any deliverables, software, reports, documentation and other materials furnished in connection with its performance under this Agreement.

• INDEMNIFICATION

1. 1. Distributor agrees to defend, indemnify and hold harmless the Company, its affiliates, and their respective members, managers, partners, officers, employees, contractors and agents, from and against any and all costs, losses, damages, judgments and expenses (including reasonable attorneys’ fees) (collectively, “Losses“) incurred in connection with any third party claim or demand that arises out of or relates to any actual or alleged breach of Distributor’s obligations, acts or omissions, representations and warranties under this Agreement.

• MISCELLANEOUS

1. 1. Relationship of Parties.  The Parties are independent contractors and will so represent themselves in all regards.  Neither Party is the agent of the other nor may bind the other in any way.
   2. Assignment.  This Agreement and any rights and obligations hereunder shall not be assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided however that Company shall have the right to freely assign this Agreement or any right or obligation it may have under the Agreement, without the need to obtain Distributor’s consent or to provide notice to the Distributor, so long as such assignment is made: (a) to a third party which acquires all or substantially all of Company’s rights, obligations, shares, voting or control rights or instruments as part of a merger with or acquisition by such third party; or (b) to such third party who purchases all or substantially all of Company’s  assets; or (c) to such third party who purchases all or substantially all of Company’s  assets relating to the activity subject of this agreement; (d) a third party owned by Company or constitutes an affiliate, sister or mother company.  Any unauthorized assignment or transfer shall be null and void.  This Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective successors and permitted assigns.
   3. Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither Party has relied upon any such prior or contemporaneous communications.
   4. Amendments and new commercial terms. No modification or other amendment to this Agreement shall be valid unless reduced to writing and signed by authorized representatives of both Parties. Daily operation and execution of this Agreement, as well as agreement on new commercial terms may discussed and agreed in a form of e-Mail acknowledged by both Parties.
   5. Severability. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
   6. No Waiver. No waiver, forbearance, indulgence or consent by either Party to deviate from the provisions of this Agreement shall operate as a waiver of any subsequent right and no analogy shall be made from any such waiver, forbearance, indulgence or consent to any subsequent event.
   7. Notices. All Notices pursuant to this Agreement will be sent to the contacts specified in each applicable IO, or to such others as either Party may provide in writing (the “Recipient”)  and the Parties irrevocably agree that any notice or document sent (including via e-mail ) to the Recipient, shall be lawfully served, and no additional service will be required. The parties shall not raise any objection or claim in respect to such service.
   8. Force Majeure.  Neither Party shall be liable for any delay or failure in performance due to events outside the defaulting Party’s reasonable control and expectation, including, without limitation, acts of God, disasters, terrorism, fire, or other circumstances beyond its reasonable control. The obligations and rights of the defaulting Party shall be extended for a period equal to the period during which such event prevented such Party’s performance
   9. Governing Law and Jurisdiction.  This agreement (and any dispute or claim relating to it or its subject matter) will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Israel, without regard to conflict of laws or to the actual state or country of incorporation or residence of the parties. The parties irrevocably consent to the exclusive jurisdiction of the competent courts of the Tel Aviv district in connection with any action arising under this Agreement and the parties irrevocably waive any claim regarding Israeli courts' international jurisdiction and/or forum non-conveniens.
   10. Arbitration. Notwithstanding the foregoing, Company has the sole discretion of electing to settle any disputes and actions arising out of this Agreement by binding arbitration before a single arbitrator (the Arbitrator) whose decision rendered in writing, shall be final, conclusive and binding on the parties. The governing law and the rules for arbitration shall be those of the state at which Company elect to submit to arbitration.