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Publisher Terms and Conditions

[Last Update: July  8, 2024]

These Publisher Terms and Conditions (“Publisher Term”) are incorporated and forms an integral part of any Insertion Order or other ordering document (“IO” and together with the Publisher Terms, the “Agreement”) executed between FireArc Technologies Ltd. (“FireArc”) and the publisher identified in the IO (“Publisher” or “you”). These Publisher Terms forms a legally binding and enforceable agreement between the parties and is effective as of the execution of an IO by both parties or otherwise acceptance of the Agreement, as applicable (“Effective Date”). FireArc and the Publisher shall each be further referred to as a “party” and collectively the “parties”.

ACCEPTANCE: (I) BY EXECUTING AN IO INCORPORATING THESE PUBLISHER TERMS; OR (II) BY USING THE SERVICES (AS DEFINED BELOW) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THE TERMS SET FORTH HEREIN. YOU AGREE TO BE BOUND BY THE AGREEMENT AND TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS REGARDING YOUR USE OF THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. 

  1. Scope of Service.
    1. Services & License. FireArc is the developer and operator of an online marketing solution, which prolongs audience engagement by expertly embedding captivating and interactive content (“Interactive Units”) onto digital assets (including websites, lending pages, social media pages, etc.) and monetizing the Interactive Units by placing third party ads (“Ads” or “Advertisements”), generated by either FireArc’s advertising partners (“FireArc Demand”, respectively) or Publisher’s advertising partners (“Publisher Demand”), as applicable to the Service & Payment Model (defined below), agreed between the parties under the IO  (collectively “Service(s)”). Subject to the terms and conditions of this Agreement, FireArc hereby grants to the Publisher during the Term (as defined below), a non-exclusive, non-transferable, non-sublicensable, limited rights and license to use and embed the Interactive Units solely on the Publishers digital assets approved by FireArc (including under the IO) (“Publisher Assets”) and solely for the purpose of the Services to be provided by FireArc in accordance with the terms of the Agreement. 
    2. Publisher Account. In order to use the Services, the Publisher will be designated with an online account (“Account”) from which the Publisher is able to manage the Services and review certain information such as insights, analytic and reports regarding Publisher Assets’ end users’ (“End Users”) engagement with the Interactive Units or Ads. The Publisher is solely responsible for the activities conducted under its Account and FireArc will not be held responsible for any unauthorized access or use of the Account or Service, by the Publisher or any of its employees, contractors or otherwise, third-parties under the Publisher’s control. 
    3. Availability and Service Modifications. Publisher acknowledge that several factors may impact the performance and quality of the Services including the Publisher’s Assets proper functionality, internet connectivity or other network traffic. FireArc takes no responsibility for any disruption, interruption, or delay caused by any failure of or inadequacy in any of these items or any other items over which FireArc has no control. From time to time, FireArc may need to perform maintenance on or upgrade the Services. This may require FireArc to temporarily suspend or limit the use of the Service, until this maintenance or upgrade can be completed. The Publisher waives the right to claim damages for such suspension or limitation of the use. FireArc will make reasonable commercial efforts to ensure such maintenance is as limited to the extent reasonably required. In need of support please contact the customer success manager or contact FireArc directly at contact@carambola.com. Without derogating from the above, FireArc reserves the right to modify, change, update, enhance, improve, remove, replace, add or make any other changes to, or discontinue, or cease, temporarily or permanently, the Services or any part of the Services, provided however, that such modification will not result in a material reduction in the level of performance or availability of the applicable Services provided to the Publisher, unless FireArc provides the Publisher with appropriate prior written notice.
  1. Use Restrictions & Publisher Assets and Content
  1. Use Restrictions. The Publisher shall not, under any circumstances, nor enable any third party to : (a) decompile, disassemble, reverse engineer, decrypt or otherwise attempt to derive any intellectual property of FireArc, including but not limited to, the source code or communication protocols for the Interactive Units or any part of the Services; (b) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer or purport to transfer rights to use any part of the Services to any third party, including the Interactive Units; (c) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services including the Interactive Units; (d) cut, dub, subtitle, modify (including, but not limited to, optimization for mobile distribution) or otherwise alter in any way the Interactive Units or any content embedded therein; (e) create a database by systematically downloading and storing all or any content from the Services; or (f) use the Service for any illegal, immoral, or unauthorized purpose (including that which would infringe upon the rights of a third party) or that is in breach of applicable law.
  2. Publisher Content and ‎Assets. The Publisher hereby represents and warrants that: (a) it owns or has the valid legal right ‎or license in and to the Publisher Assets enabling the Publisher to lawfully use the Services in conjunction with the Publisher Assets ; and (b) any content included in the Publisher Assets, and any content the Publisher may include upload, transfer, poste, created, display or made available by Publisher within the Interactive Units, ‎including the Ads on behalf of the Publisher Demand (collectively “Content”) do not and will not infringe ‎or violate any applicable law, regulations, intellectual property right or any other right ‎of any person or entity nor include any content  that involves, facilitates, advocates or ‎promotes one or more of the following: (i) false, misleading, deceptive, discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (ii) libelous, defamatory, obscene, nudity, pornographic, adult content, sexually explicit or abusive activities; (iii) illegal gambling; (iv) illegal activities; (v) copyrighted materials for download, sale or otherwise, in any case without the permission of the copyright owner or otherwise in violation of law; and (vi) a conflict or violation of any law or any intellectual property or other rights of any person or entity (“Prohibited Materials”).
  3. Fraudulent Activities. Publisher will not generate or try to increase traffic using Fraudulent Activity. For the purpose of this Agreement “Fraudulent Activity” shall mean initiating or using any promotion or campaign in connection with the Interactive Units and Ads generated by FireArc Demand which: (i) violates any applicable law or regulation; (ii) is in violation of this Agreement; (iii) generating actions that are determined to be invalid, “fraudulent” or automated; (iv) using any materials or content that 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, device, hardware, network or telecommunications equipment; (v) encouraging or incentivizing End Users to visit, click, or use the Interactive Units and Ads for the purpose of generating clicks, impressions or actions, as applicable or adding leads, clicks or impressions or inflate leads, clicks or impressions by fraudulent traffic generation such as bot/non-human traffic, stacked/hidden iframes, ad injection, impression laundering, clicks without referring URLs or not generated by actual End Users, and extraordinary high number of repeat clicks; (vii) use or employ any misleading, fraudulent or inappropriate practices that may deceive the End Users.  Should Publisher engage in any Fraudulent Activity, as determined by FireArc or advertisers of FireArc Demand at their sole discretion, FireArc may immediately revoke any and all right Publisher may have under the Agreement, and FireArc will deduct such amounts from Publisher Revenue Share Percentage (as defined below) as well as reserve to right to withhold any payments the Publisher may be entitled to receive under the Agreement, as well as to immediately suspend Publisher’s Account or terminate the Agreement, in addition to any other remedies that may be available to FireArc under this Agreement or any applicable law, without liability to Publisher, For the avoidance of doubt, termination or suspension due to the above shall not relief Publisher from its obligations to pay any payments FireArc is entitled to under the Agreement. . 
  1. FireArc Demand & Advertisements
    1. Third Party Ads. Depending on the Services & Payment Model, FireArc may place Ads within the Interactive Units generated from the FireArc Demand. The Publisher acknowledges and agree that the frequency, placement and timing of the  Ads placed by FireArc generated through the FireArc Demand are subject to FireArc’s discretion and that such Ads  are provided by third party advertisers and FireArc does not control the content displayed through such Ads and does not bear any responsibility with regard to such Ads.
    2. Social Network API. Further, as part of the Service, FireArc may include in the Interactive Units, an Application Programming Interface from different social networks (“API“) to display posts, video, and other social media’s content within the Interactive Unite (“Social Media Content“). The Publisher acknowledges that the Social Media Content displayed through the use of the API, is provided by FireArc’s social network partners, and FireArc does not control or monitor the Social Media Content displayed through the API, and does not bear any responsibility with regards to such Social Media Content.
  2. Service & Payment Model.
    1. The specification of the Services, including payments and source from which Ads’ shall be generated, shall be in accordance with the model and terms agreed under the IO (“Service & Payment Model”), where for the purpose of such Service & Payment Models agreed under the IO, the following terms shall have the meaning ascribed to the below:
      1.  “Revenue Share Percentage” shall mean the percentage agreed upon under the IO out of the total revenue collected and actually received by FireArc from FireArc Demand, after the deduction of related expenses such as refunds, chargebacks, taxes, or other direct costs and media expenses, reported by FireArc (“FireArc Revenue”). 
      2. “Serving Fee” shall mean a fixed CPM fee for served Ads in the Interactive Unit, as agreed in the IO.  
      3. CPM” – cost per mile in the rate agreed upon under the IO for Ads displayed in the Interactive Unit and that were viewable by End Users. 
    2. Tracking and Reports.
      1. Payment of Revenue Share Percentage and CPM shall be calculated according to the applicable Ads’ performance as reported by FireArc tracking systems and records. FireArc will provide the Publisher through the Account the tracking of such Ads performance (“FireArc Reports”). FireArc Reports may be adjusted during each applicable month due to tracking discrepancies or by the applicable advertising partners. 
      2. Payment of Serving Fee shall be calculated based on Publisher’s tracking and reporting systems (“Publisher Reports”) which shall be provided to FireArc by email correspondence or through API. 
      3. Final Reports by both parties, as applicable, for CPM or Serving Fees payments per each applicable month, and the Revenue Share Percentage per revenues collected during that month, shall be provided by the parties up to ten (10) days as of the end of each applicable month. In the event of discrepancies, each party may notify the other party up to ten (10) days as receipt of the final Reports and in such event, the parties shall corporate in good faith to reach an amicable solution, provided that Publisher shall not be entitled to withhold payment of any non-disputed amounts. 
    3. Payment Terms, Tax.
      1. All payments shall be made according to the payment terms agreed under the IO. Amounts payable in consideration for the Services are exclusive of all taxes including, among others, sales, value-added and any other taxes, charges, levies and duties.
      2. When applicable , payments shall be made by a way of netting the payment each party is entitled to. The payment shall be made by the Party with the remaining payment obligation on each such month
  1. Intellectual Property
    1. The Intellectual Property Rights and all other rights, title and interest of any nature in and to the Services, the Interactive Units or any related documentation made available by or on behalf of FireArc hereunder (including all modifications, enhancements, upgrades, customizations and derivative works thereof, and excluding the Publisher Content) are and shall remain the exclusive property of FireArc and its licensors. “Intellectual Property” means all intellectual property rights of every kind and description, including without limitation: (i) rights in or to trademarks and service marks (whether or not registered), trade names, logos, and other designations of the source of origin, together with all goodwill related to the foregoing, (ii) patents and patent applications, (iii) rights in or to copyrights, whether or not registered, (iv) rights in or to trade secrets and confidential information, including without limitation know-how, technology methods, ideas, and inventions, (v) rights in the software and computer code (whether in source code, object code or any other form) and (vi) all applications and registrations of any of the foregoing.
    2. The Publisher represents and warrants that it has the lawful right to implement the Interactive Units, including the Ads, within the Publisher Assets and that the Publisher Assets and Publisher Content are owned or lawfully licensed.
    3. Nothing in this Agreement shall be construed as transferring any right, title or interest to the Publisher or any third party, unless explicitly stated hereunder. FireArc and its licensors reserve any and all rights not expressly granted in this Agreement and the Publisher reserves all rights to the Publisher Assets, Content. Unless stated otherwise, the provisions of this Section shall remain in full force and effect after termination or expiration of this Agreement for whatever reason.
    4. If the Publisher chooses to provide FireArc with suggested improvement, feedback, ideas, concept or other statements concerning the Service (“Feedback“) the Publisher hereby grant FireArc a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Services or otherwise use any Feedbacks FireArc receives from Publisher solely to improve the Services, provided that such Feedbacks are used in a manner that is not attributable to the Publisher.
  2. Term, Renewal and Termination.
    1. This Agreement shall commence on the Effective Date and continue until terminated by either party in accordance with the Termination Notice Period set forth in the IO (“Term”).
    2. FireArc reserves the right to temporarily suspend any or all of the Services at any time immediately if FireArc reasonably suspects that the Publisher is in breach of this Agreement in a manner that may cause material harm to FireArc Services.
    3. Upon expiration or termination for any reason of the Agreement: (i) the Publisher shall cease access to or use the Interactive Units and the Services; (ii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control, except as otherwise agreed by the parties or as required by applicable laws; (iii) FireArc shall be entitled for all remaining unpaid fees, provided that the minimum Service Fee shall be calculated on a pro rata basis, in accordance with the effective date of termination; and (iv) expiration or termination for any reason of the Agreement shall not derogate from rights and obligations accrued prior to the Effective Date of expiration or termination.
    4. All sections detailed herein which by their nature are intended to survive termination shall survive termination or expiration for any reason.
  3. Representations & Warranties, Warranties Disclaimer.
    1. Each Party represents and warrants to the other Party that: (i) such Party 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 of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; and (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
    2. FireArc hereby represents and warrants that it will provide the Services in a timely and professional manner which will conform to and operate in accordance with its documentation and this Agreement. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREUNDER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, THE INTERACTIVE UNITS, AND THE FEATURES OR RELATED DOCUMENTATION, SOFTWARE OR COMPONENT THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. FIREARC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, REGARDING THE INTERACTIVE UNITS AND SERVICES, INCLUDING ANY IMPLIED WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, OR LACK OF VIRUSES. FIREARC DOES NOT PROVIDE ANY WARRANTY THAT THE SERVICES WILL BE ERROR-FREE AND DOES NOT PROVIDE ANY WARRANTY THT PUBLISHER WILL GENERATE REVENUES FROM THE USE OF THE SERVICES 
  4. Privacy.
    1. In the course of the Service, FireArc shall process Personal Data (as such term is defined under the DPA) on behalf of Publisher, all subject to applicable data protection laws and the Data Processing Agreement incorporated herein by reference (“DPA”). 
    2. FireArc may further, directly or through third party measurement tools, collect and use usage data solely for the purpose of improving, operating, and supporting the Services. FireArc will not share the usage data with any third party and shall process it solely in accordance with the Carambola Privacy Policy.
    3. Please note that FireArc does not provide an archiving or hosting service, and FireArc expressly disclaims all other obligations with respect to storage of Publisher Data (as defined under the DPA). The Publisher shall be responsible to back up the Publisher Data at all times.
  5. Confidentiality.
    1. For the purpose of this Agreement “Confidential Information” means all nonpublic information, in whatever form disclosed, provided by or on behalf of either Party (“Disclosing Party”) to the other Party (“Receiving Party”), that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, can reasonably be understood to be confidential. FireArc Services and the terms of this Agreement will be deemed Confidential Information of FireArc without any marking or further designation.
    2. The Confidential Information shall not include information which (i) is at the time of disclosure or subsequently becomes generally available to the public, other than as a result of a breach of the Agreements; (ii) was previously in the possession of the Receiving Party prior to its disclosure hereunder; (iii) is independently developed by the Receiving Party without reliance on, use of or reference to the Confidential Information and without any breach of the terms of the Agreements; (iv) was lawfully received by the Receiving Party from a third party having rights to disclose, and under no confidentiality obligations with respect to, such Confidential Information.
    3. Except as set for herein, and to the extent required under applicable law, the Receiving Party agrees to keep confidential and not disclose, use, copy, or distribute any Confidential Information to anyone, other than to those of its employees and contractors, if and to the extent that such employees and contractors need to know such Confidential Information for Receiving Party’s performance of the Agreements, and provided that such employees and contractors are bound by all the obligations concerning such Confidential Information contained in the Agreements.
    4. The obligations outlined in this Section shall survive the termination or expiration of the Agreements for a period of 3 years following the termination for whatever reason. All Confidential Information shall be and remain the property of the Disclosing Party. The disclosure of the Confidential Information shall not be construed as granting the Receiving Party any right, title, or license, whether express or implied, concerning the Confidential Information or to its related intellectual.
    5. Each party acknowledges that its breach of this Section may cause the other party extensive and irreparable harm and damage and agrees that the other party shall be entitled to injunctive relief, without bond, to prevent the use or disclosure of its Confidential Information not authorized by this Agreement, in addition to any other remedy available to the other party under applicable law.
  6. Limitation of Liability.

EXCEPT AS OTHERWISE STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EITHER PARTY, INCLUDING ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS, OR AGENTS, WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM THE USE OF FIREARC SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO THE USE OF THE INTERACTIVE UNITS OR REGISTRATION TO THE SERVICES. THESE EXCLUSIONS INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF THE APPLICABLE PARTY HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED, HOWEVER, DO NOT INCLUDE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, CONFIDENTIALITY, AND INTELLECTUAL PROPERTY INFRINGEMENT CLAIM. 

THE PARTIES LIABILITY UNDER THIS AGREEMENT TO EACH OTHER OR ANY THIRD PARTIES, FOR DIRECT OR INDIRECT CLAIMS SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID BY THE PARTIES TO THE OTHER PARTY UNDER THE AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, PROVIDED THAT THE LIMITATIONS ABOVE, SHALL NOT APPLY, NOR LIMIT IN ANY MANNER, PUBLISHER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. PUBLISHER ACKNOWLEDGES AND AGREES THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, FIREARC WOULD NOT BE ABLE TO OFFER THE SERVICES. 

  1. Indemnification.

Subject to Section 10 above, each Party will defend, indemnify, save and hold harmless the other Party and the officers, directors, agents, affiliates, distributors, franchisees and employees of the other Party from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from the indemnifying Party’s (i) breach or alleged breach of any obligation, representation, or warranty of this Agreement; (ii) infringement of any intellectual property right of a third-party, or misappropriation of any trade secret; or (iii) the Party’s gross negligence or willful misconduct in performance of its obligations under this Agreement.

  1. Independent Contractors.

The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

  1. Assignment.

Neither Party may assign, delegate or transfer this Agreement or any right, interest or benefit under this Agreement, or allow this Agreement to be assumed by, any third party without the prior written consent of the other Party, except that FireArc may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of FireArc’s assets or voting securities. Any assignment, delegation, transfer or assumption without in violation of this Section 13 shall be null and void.

  1. Modifications.

FireAre may update and modify this Agreement at any time, by providing 72 hours prior written notice, and such will be effective following the notice period. Where the Publisher objects to such changes, in the event the parties did not reach an amicable solution, the Publisher shall be entitled to terminate the Agreement upon the amendments’ effective date.

  1. Miscellaneous.

This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of New York except for its conflicts of laws principles, and each party irrevocably consents to the exclusive jurisdiction of the courts situated in the Southern District of New York over all claims and all actions to enforce such claims or to recover damages or other relief in connection with such claims. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. This Agreement sets forth the entire agreement and supersedes any and all prior agreements of the Parties with respect to the transactions set forth herein.