This Advertiser Agreement (“Agreement”) shall govern the relationship between ClickDealer Ltd. a company duly incorporated under the laws of BVI ("MobAir") and any and all Advertisers (“the Advertiser”) who registered with the Website to enjoy MobAir’s services.
WHEREAS, MobAir provides the Advertiser with the services specified herein, without limitation, through its website situated at http://mobair.com/ (“the Website”) or in any other manner which is in its sole discretion proper for such services.
WHEREAS, the Advertiser pays compensation to MobAir for its services as it is stated herein.
NOW THEREFORE, the Advertiser’s use of and access to the Website is considered its consent to be bound by this Agreement and any additional rules and guidelines that MobAir may post on the Website. If the Advertiser does not agree to be bound by this Agreement, then it must not use the Website.
PLEASE NOTE that MobAir may change this Agreement at any time and without any notice to the Advertiser. MobAir recommend that the Advertiser periodically visit the Website to review this Agreement. By using the Website after MobAir post any changes, the Advertiser agree to accept those changes, whether or not you actually reviewed them.
1.1 Advertiser - individuals or companies who need to advertise their products online and who registered with the Website to enjoy MobAir’s services.
1.2. Advertising Material - any graphic file and/or any and all accompanying printed, handwritten or electronically transferred information supplied by MobAir to the Publisher to be displayed for advertising purposes.
1.3. Campaign - cumulative action that focused on advertising of Advertiser’s products performing through
1.4. CPA (Cost-Per-Action) - a kind of Traffic which is achieved by a user performing a pre-determined action.
1.5. CPC (Cost-Per-Click) - a kind of Traffic which is achieved by a user clicking on a given Advertising Material and thereby being directed to a selected webpage.
1.6. CPL (Cost-Per-Lead) - a kind of Traffic where the advertiser pays for an explicit sign-up from a user interested in an Advertiser's offer.
1.7. CPM (Cost-Per-Mile) - a kind of Traffic which is achieved by one thousand displays of an Advertising Material.
1.8. IO (Insertion Order) - means a document that specifies the scope and essential conditions of a Campaign. It is hereby acknowledged between both the parties that the IO (if any) is an integral part of this Agreement and they collectively form and constitute an entire document.
1.9. Media - collective name for websites and/or mobile websites and/or mobile applications which are directly or indirectly owed and/or operates by the Publisher for the purposes of placing Advertising Material.
1.10. Offer - an Advertiser’s offer to place the Advertising Material on third parties’ Media on a reimbursable basis.
1.11. Publisher means individuals or companies who place the third parties’ advertisement on Media and who registered with the Website to enjoy MobAir’s services.
1.12. Traffic means the nominal measure of internet users who are the subject to an Advertiser’s Campaign.
2.1. The Advertiser hereby agrees to grant to MobAir and its Publishers a non-exclusive, worldwide, royalty-free license and right to use, perform, reproduce, display, transmit, copy and distribute the Advertising Material and any trademark, logos, and graphics of the Advertiser in accordance with the IO (if any) and this Agreement.
2.2. MobAir reserves at any time the right to reject, suspend or cancel any Campaign and/or to reject any Advertising Material which in the opinion and/or discretion of MobAir is not deemed suitable and appropriate for publication for any reason. MobAir reserves the right to reject, suspend, postpone or cancel any Advertising Material which in the opinion of MobAir may expose MobAir into criminal and/or civil liability and/or any other form of liability. Furthermore MobAir might refuse, reject, suspend or cancel any Campaign if in its opinion it is deemed to be offensive or objectionable.
2.3. MobAir does not guarantee the placement, positioning or the timing of delivery of any Advertising Material, or the certain quantity and quality of Traffic, publications, conversions or clicks on any Advertising Material. The promoting, positioning and distribution of the Advertising Material shall be at the sole discretion of MobAir, unless such timing, positioning and distribution is specifically provided for in the IO and agreed between the parties.
2.4. Promoting of Advertiser Material within the Website is at the sole discretion of MobAir, and MobAir will not be prohibited from also carrying Advertising Material for any product or business competitive to the product or business of the Advertiser.
3.1. For the services for, without limitation, promoting the Advertiser’s Offers to be rendered by MobAir, the Advertiser hereby pledges, covenants and agrees to pay to MobAir for the valid and qualified Traffic delivered to the Advertiser as a result of our services and any additional payments which are to be agreed upon between MobAir and the Advertiser.
3.2. For the purpose of effecting payments, MobAir will issue the Advertiser with invoices at monthly intervals, or at any other such intervals which are set forth in the IO and/or agreed between the parties. The Advertiser hereby promises, agrees and covenants to effect payment of the amounts mentioned in the invoices. Such amounts may include - without limitation - all applicable and pertinent sales, use, excise and/or any other taxes, without set-off. Such amounts might also include abatements, compensations or deductions, all in accordance with the terms of this Agreement and the additional terms set out in the IO. Payment, unless there is an agreement to the contrary, shall be made to the Company within 14 (fourteen) calendar days from the date that the invoice is issued and sent by MobAir to the Advertiser.
3.3. All payments hereunder shall be effected by the Advertiser by a bank transfer to the account of MobAir according to bank details, specified in the invoice. All bank commission and duties for money transfer shall be paid by the Advertiser.
3.4. The Advertiser acknowledges and agrees that any credit card and related billing and any other payment information that the Advertiser provides to MobAir may be shared with companies who work on our behalf such as payment processors and/or credit agencies solely for the purpose of checking credit and/or effecting payment MobAir and serving the Advertiser’s account. MobAir shall not be liable for any use or disclosure of such information by such third party.
3.5. Undisputed overdue payments will accrue interest at the rate of 24% per annum or in any case at the maximum permissive by law rate. Interest rate shall begin to accrue as from the date on which the invoice overdue up and until final settlement of the said invoice and it shall be calculated on a daily basis.
4.1. MobAir will provide the Advertiser with quantity information on the Traffic delivered to the Advertiser that may contain related statistics through the Website or by email or in any other manner which is in its sole discretion proper for such purpose (“Reports”). The Advertiser acknowledges that the Reports are the official, definitive measurements of MobAir's performance on any delivery obligations provided herein.
4.2. The Advertiser shall be charged for MobAir’s services at the rate and full amount based upon the Reports. The Traffic delivered to the Advertiser hereunder is considered valid and qualified except the Advertiser soundly proved otherwise. It is the sole discretion of MobAir to determine whether the Advertiser succeed with such proving.
4.3. Any disputes over the Traffic shall be made to MobAir within five (5) calendar days from the date the Report appeared on the Website or sent to the Publisher via email. After the said period the Advertiser expressly waves its right to dispute howsoever the number and/or quality of the Traffic.
5.1. MobAir hereby represents, acknowledges and warrants that (1) it has the legal capacity and authority to enter into and be bound by the present Agreement; (2) it has the full legal authority to use all its property including the Website; (3) its services will perform substantially and materially in accordance with this Agreement and under normal use and circumstances, and for the purpose intended.
5.2. Except for the express warranties set forth above and to the extent permitted by law MobAir expressly disclaims all other warranties of any kind with respect to the services, whether express or implied, including without limitation any warranties for merchantability, fitness for a particular purpose, that the services will be uninterrupted, completely secure and/or free of the Website errors.
5.3. The Website may contain links to other independent third-party site and/or application and such linked sites and/or application are not under MobAir’s control, and MobAir is not responsible for and does not endorse the content of such sites, including any information or materials contained on such sites and/or application. The Publisher will need to make its own independent judgment regarding its interaction with these sites and/or application.
5.4. The Advertiser may not transfer its account to anyone without explicit written permission of MobAir and it may not use anyone else’s account or password at any time without the express permission and consent of MobAir and the holder of that account. MobAir cannot and will not be liable for any loss or damage arising from the Advertiser’s failure to comply with these obligations. The Advertiser will be held liable for losses due to someone else using its account or password as a result of it failing to keep its account information secure and confidential.
6.1. The Advertiser hereby represents, acknowledges and warrants that (1) it has the legal capacity and authority to enter into and be bound by the present Agreement; (2) it has the full legal authority to use and to authorize others to use all elements in and pertaining to the Advertising Material, including without limitation: (a) the names, likenesses, biographical information and/or any other identifying attributes of any individual who is identifiable in the Advertising Material; (b) all elements of the Advertising Material that are subject to protection under any and all intellectual property law, including without limitation, the copyright, trademark, unfair competition and/or patent laws and regulations of any jurisdiction in which the Advertising Material may be exhibited; (c) all “testimonials” (as that term is commonly understood in the advertising industry) and/or endorsements contained in the Advertising Material; (3) the Advertising Material is not and will not in any way: (a) subject to any third party claims and it has been fully cleared by Advertiser for all uses set forth herein, and no payments will be required to be made to any third party in connection with the use of the Advertising Material (or, if any such payments are required, the Advertiser will be solely responsible therefor and indemnify and hold harmless MobAir in connection therewith); (b) violate any third party copyright, trademark, trade name trade secret or other form of intellectual property; (c) violate any applicable laws rules and/or regulations; (d) contain false or deceptive advertising or any machine-readable code including but not limited to any virus, Trojan-horse or other self-executing program; (e) contain any content that can be classified as defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate, or (f) violate any applicable law or regulation and particularly in respect to the offering of sweepstakes, gambling, promotions etc.
6.2. The Advertiser hereby accepts that if it is in breach of any of the above representations, acknowledgements and warranties, then MobAir has the right to immediately terminate the present Agreement and take any other necessary step and/or action deemed appropriate.
6.3. The Advertiser covenants, agrees and undertakes that (1) it will, at all times, comply with all laws applicable in the jurisdiction where the Advertiser is situated or otherwise conducts its business; (2) it will, at all times, comply with the terms of this Agreement; (3) it will at all times comply with legal provisions pertaining to online advertising and spam.
7.1. This Agreement has been entered into for an indefinite period of time until terminated by either party as stated bellow. If MobAir has not rendered the services for any period of time within duration hereof this cannot be considered a breach of the Agreement and result in any losses or damages to the Advertiser.
7.2. Either party may terminate this agreement and cancel the campaigns providing a reason for such termination, by giving a two (2) business days’ written notice to the other party except otherwise hasn’t been agreed in the IO.
7.3. MobAir might also immediately terminate this Agreement in the cases where MobAir considers that the Advertiser has been in breach of any of the terms of this Agreement or if it is considered that the Advertiser has acted and/or the Campaign has been managed in a way which (1) is in contravention and/or violation of applicable laws, by-laws, rules and regulations; (2) is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate; (3) might harm the good reputation of MobAir, its directors, employees, Publishers or any other person and/or body for which MobAir is in law responsible; (4) occasions losses or the risk of loss for MobAir or any third party; or (5) fails to comply with this Agreement and such breach of contract is material.
7.4. This Agreement will be automatically terminated when the Advertiser’s account has not been in use for more than three (3) months.
8.1. During the term of this Agreement either party (“Receiving Party”) may have access to information of the other party (“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 Advertising Material provided by a Party under this Agreement, including but not limited to the Advertising Material; (2) any reports or invoices delivered by a Disclosing Party under this Agreement; (3) information relating to a Disclosing Party’s business or financial affairs; (4) marketing strategies of a Disclosing Party; (4) lists of customers, suppliers and service providers of a Disclosing Party; or (5) any information of any Third Party as to which the Disclosing Party owes a duty of confidentiality.
8.2. Each party agrees: (1) 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; (2) 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 (3) 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.
8.3. 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. 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.
8.4. The confidentiality non-disclosure provisions shall survive this Agreement for a period of 3 (three) years.
9.1. The Advertiser agrees to indemnify and hold harmless MobAir, its Publishers, subsidiaries, successors and assigns from any claim, action, judgment, or liability, threatened or adjudicated, of any kind arising out of or in connection with any breach by the Advertiser of any representation, warranty or agreement and the Advertiser shall promptly reimburse MobAir for any sums, costs or expenses (including, without limitation, reasonable attorney's fees and expenses, settlement costs and disbursements) incurred by MobAir in connection therewith.
10.1. The Advertiser agrees that MobAir shall not be liable for (1) any delays in the delivery and/or non?delivery of any Advertising Material and/or Traffic; (2) anything affecting the production of an Advertising Material in the event of an act of God, action by any government entity, network difficulties, electronic malfunction or any condition beyond the control of Company; (3) consequential damages of any nature whatsoever; and/or (4) errors or omissions in the Advertising Material as it is exhibited to the public.
10.2. IN NO EVENT SHALL MOBAir BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL COMPANY’S LIABILITY HEREUNDER EXCEED THE PAYMENTS MADE BY ADVERTISER DURING THE PRECEDING 6 (SIX) MONTHS.
11.1. All Website content as text, graphics, user interface, visual interfaces, photographs, trademarks, logos, artwork and computer code, including but not limited to the design, structure, selection, coordination, expression and arrangement of such content is owned, controlled or licensed by MobAir, and is protected by trade dress, copyright and trademark laws, and various other intellectual property rights and unfair competition laws.
11.2. No part and no content may be copied, reproduced, republished, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without MobAir’s express prior written consent.
11.3. The Advertiser may use information about the Website and our services provided that it (1) not removes any proprietary notice language in all copies of such documents, (2) uses such information only for personal, non-commercial informational purpose and does not copy or post such information on any networked computer or broadcast it in any media, (3) makes no modifications to any such information, and (4) does not make any representations or warranties related to MobAir.
12.1. The parties agree that this Agreement will be construed in all respects in accordance with the laws of England and Wales applicable to agreements entered into and to be wholly performed therein, and, in the event of any dispute related to the subject matter of this Agreement, the parties hereto agree to submit to the exclusive jurisdiction of the courts located in England.
12.2. In the event of any dispute arising out of or relating to this Agreement, the Advertiser’s sole remedy shall be an action for damages at law. The Advertiser expressly waives any and all equitable rights they may have hereunder, including without limitation any right to enjoin, rescind, terminate or otherwise interfere with MobAir's delivery, placement and exhibition of any Advertising Material and Traffic whatsoever.
12.3. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, MobAir shall be entitled to reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may be entitled.
13.1. Any notice or other communication given or made in order to comply or in connection with the matters contemplated by this Agreement shall be in writing and shall be delivered by e-mail to the address of the parties set forth in the IO and shall be deemed to have been duly given or made upon successful transmission of the email unless otherwise mutually agreed by parties.
13.2. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent of the other in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
13.3. If any term or provision of this Agreement is declared illegal, invalid or unenforceable, the parties intend that the remainder of this Agreement shall not be affected thereby and that, in lieu of any such stricken provision, there shall be added as a part hereof, a substitute provision as similar in substance to the illegal, invalid or unenforceable term or provision as may be possible.
13.4. Nothing contained in this Agreement shall be construed to constitute a partnership or joint venture or any other fiduciary relationship. Neither party is the employee, agent, partner or joint venturer of the other, it being understood and agreed that the relationship of the parties is that of independent contractors.
13.5. No waiver by either party of any default hereunder shall constitute a waiver by such party of any subsequent default, whether such subsequent default is similar in nature to any previously waived default. All remedies under this Agreement or under law or otherwise shall be cumulative and not alternative.
13.6. This Agreement is intended by the parties hereto as a complete and final expression of their agreement and understanding with respect to the subject matter hereof and supersede all previous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter hereof.