Terms of Service
The following terms and conditions shall govern the placement and delivery of advertising as
set forth in any insertion orders or service agreements (“IO”) executed by and between
TelegramAds Ltd. ("TelegramAds") and Advertiser (the “Agreement”).
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Ads.
Prior to the effective date of the campaign (as specified in the Insertion Order)
Advertiser will create and deliver to TelegramAds all content required for any ads in
the form requested by TelegramAds and in accordance with any specifications and policies
set-forth by TelegramAds. The Advertiser represents and warrants that (i) Advertiser has
all necessary licenses, right, title, interest and clearances in and to the ads, the
advertising materials, any website(s), application(s) and material linked thereto or
connected therewith, and the content contained or related therewith (the “Material”);
(ii) the use of the Material by TelegramAds and its affiliates will not infringe on any
third party’s copyright, patent, trademark, trade secret or other proprietary rights or
right of publicity or privacy; (iii) the Advertiser will fulfill all representations and
commitments made in the Material; (iv) any and all Material are the sole responsibility
of the Advertiser; (v) the Material and any website(s), app(s) and materials linked
thereto or therewith do not and will not breach any duty toward or right of third party
or entity including, without limitation, rights of publicity or privacy, or rights or
duties under consumer protection, product liability, tort, or contract theories and the
Materials will comply with all applicable laws, rules, restrictions, and regulations,
including without limiting to, privacy laws, data protection laws and regulations,
advertising laws, intellectual property laws and any and all laws and regulations
applicable to the state or country where the ads are displayed; and (vi) the Material do
not and will not include any content that is pornographic, illegal, racist, libelous,
defamatory, contrary to public policy or otherwise inappropriate or unlawful; or any
content that contains hate speech, “spam”, malicious code, adware, spyware or drive-by
download applications; or any content that contains viruses or similar programs that
might harm data or computer systems; or content promoting pornography, the use of
illegal substances, illegal activity, racism, hate, “spam”, mail fraud, pyramid schemes
or investment opportunities or advice not permitted by law; or content that is otherwise
inappropriate or unlawful.
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Advertising Policy.
Advertiser is solely responsible for the ads content, any website
or application or other destination and the data and subject matter of any ad or
advertising materials, and Advertiser releases TelegramAds from any and all liability
arising from Advertiser’s use of the ads and advertising materials as permitted in this
Agreement or IO. TelegramAds will not be required to publish any ad that is not in
accordance with its policies, restrictions or specifications as determined in its sole
discretion. Notwithstanding the foregoing, TelegramAds’ policies, specifications and/or
recommendations should not be construed as legal advice, or as sufficient guidelines to
ensure that such ads comply with applicable law. TelegramAds shall have no obligation to
monitor or edit the ads, and TelegramAds assumes no obligation and hereby disclaims any
liability for Advertiser’s use or placements of any ads. TelegramAds will determine the
measurement of the impressions, clicks, offers, installs, conversions or other results
and all payments will be based on such numbers and shall be final. TelegramAds shall not
be responsible for any damage or loss as may be caused by the disruption of ads or the
removal of ads by any third party, including but not limited to, any failure on the part
of an advertising channel.
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Representations. Advertiser warrants and represents that: (i) the
Advertiser is
duly
organized, validly existing and in good standing under the laws of the place of
Advertiser’s incorporation, (ii) this Agreement constitutes the Advertiser’s valid and
binding obligation and is enforceable against it in accordance with the terms of the
Agreement, (iii) the Advertiser has the right, power and authority to enter into and
perform its obligations hereunder, and the execution of and the performance under this
Agreement by the Advertiser does not and will not violate, conflict with or constitute a
breach of or default under or require any consent required under the Advertiser’s
organizational documents or other governing instruments or regulatory institution, (iv)
the Advertiser’s performance under this Agreement and IO shall at all times comply with
all applicable laws, rules and regulations, including without limitation, privacy laws,
data protection laws and regulations (including, Applicable Data Protection Law, as
defined in section 13 below), propriety laws, intellectual property laws (including, in
each case, any related regulatory guidance and codes issued by statutory, regulatory and
industry bodies); (v) the Advertiser will put in place and maintain a privacy policy on
its app(s) and website(s) which complies with all laws and regulations regarding the
privacy of users’ private or personal data (including Applicable Data Protection Law),
and clearly explains to users its policies and procedures regarding the collection,
processing and use of personal data; and (vi) all of the information provided to
TelegramAds in connection with this Agreement and/ or IO is correct, complete and
current.
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Distribution of Ads. TelegramAds does not guarantee that Advertiser’s ads
will be
available through any specific part of the Telegram groups upon which TelegramAds places
the ads, the timing of delivery of the ads and/or the placement and positioning of the
Advertiser’s ads. TelegramAds reserves the right to approve, omit, edit or reject any of
Advertiser’s ads for any reason at any time, including the right to make minor changes
to the ads in order to optimize campaign results, with or without notice to the
Advertiser. In addition, TelegramAds reserves the right, at any time, to remove any of
Advertiser’s ads if TelegramAds determines, in its sole discretion that the ad or any
portion thereof violates any of TelegramAds’ policies. In addition, TelegramAds shall
have the absolute right to reject any URL link embedded within any ad. TelegramAds’
failure to reject, cancel, approve, omit, edit or modify shall not be construed as an
acceptance of an ad, nor shall it negate other provisions of the IO or these terms and
conditions, specifically with respect to liability. Third party publisher or its
Telegram groups may reject or remove any ad for any or no reason. Advertiser agrees that
TelegramAds shall not be responsible for any discrepancy in targeting criteria, which is
the result of the publisher’s reporting methods.
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No Guarantee. To the fullest extent permitted by law, TelegramAds
disclaims all
guarantees regarding positioning, levels, quality, or timing of: (i) costs per click;
(ii) click through rates; (iii) availability and delivery of any impressions; (iv)
clicks; (v) conversions or other results for any ads; and (vi) the adjacency or
placement of ads within the advertising networks used by TelegramAds. Advertiser
acknowledges, agrees and accepts the risk that prohibited or improper activity can be
generated by third parties, and any credits or refunds for such activity are at
TelegramAds’ sole discretion. TelegramAds shall have no responsibility or liability in
relation with any third party click fraud or other improper actions that may occur.
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Payments. Advertiser will make payments to TelegramAds in accordance with
the
payment
terms in the IO. Payments are due based on Advertiser’s ads placed by TelegramAds
regardless of whether Advertiser has collected payment from its clients.
All amounts payable represent the net amounts to be received by TelegramAds and do not
include any current or future transfer charges to correspondent banks, customs, duties,
charges, sales tax, withholding tax, VAT or any applicable tax, which may apply and
shall be borne, if applicable, by Advertiser. Advertiser shall pay TelegramAds the full
amount invoiced, without offset or deduction.
Advertiser’s failure to make timely payment and/ or any charge-back by Advertiser shall
constitute a material breach of the Agreement and Advertiser will be responsible for all
reasonable expenses incurred by TelegramAds in collecting the amounts due plus interest
at the rate permitted by law.
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Confidentiality. Advertiser agrees to keep this agreement and all of its
terms,
numbers and information, confidential. “Confidential Information” means any information
disclosed by either party to the other party, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including without limitation technical
data, trade secrets, know-how, actual and anticipated research, developments or
products, product plans, services, software, inventions, processes, discoveries,
formulas, architectures, concepts, ideas, designs, drawings, personnel, customers,
markets, marketing plans, distribution methods, business plans, finance and
manufacturing plans). Confidential Information may also include information disclosed to
a disclosing party by third parties. Confidential Information shall not include any
information which (i) was publicly known prior to the time of disclosure by the
disclosing party; (ii) becomes publicly known after disclosure by the disclosing party
to the receiving party through no action or inaction of the receiving party; (iii) is
already in the possession of the receiving party at the time of disclosure by the
disclosing party as shown by the receiving party’s records immediately prior to the time
of disclosure; (iv) is obtained by the receiving party from a third party without a
breach of such third party’s obligations of confidentiality; (v) was independently
developed by the receiving party without use of the disclosing party’s Confidential
information; or (vi) is required by law to be disclosed by the receiving party, provided
that the receiving party gives the disclosing party prompt written notice of such
requirement prior to such disclosure and assistance in obtaining an order protecting the
information from public disclosure. Each party shall use Confidential Information
disclosed to it by the other party only for the purpose of the services of this
Agreement and the IO signed by the parties and for no other purpose.
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License. Advertiser hereby grants to TelegramAds and TelegramAds’ partners
a
non-exclusive, royalty-free, worldwide, transferable license, under all Advertiser’s
rights, to: (a) use, perform, serve, place and display all ads and materials delivered
hereunder; and (b) use all associated Advertiser intellectual property in connection
therewith. Advertiser agrees that TelegramAds may include Advertiser’s name (including
any trade name, trademark, service mark and logo) and any ad provided hereunder on
TelegramAds’ advertisers list and in its marketing materials and sales presentations and
provide TelegramAds with the license to use its trade names, trademarks, service marks
and logo for the purpose hereof.
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OWNERSHIP: TelegramAds is the sole owner of any and all intellectual
property
rights
associated with the services herein. TelegramAds retains all rights, title and interest,
including any and all intellectual property rights in and to any materials created,
developed or provided by TelegramAds in relation to Advertiser’s campaign. TelegramAds
reserves all rights not expressly granted herein.
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NO WARRANTY. TelegramAds’ services provided hereunder are provided on an
“as is”
and
“as available” basis, without any warranty of any kind and without any guarantee of
continuous or uninterrupted display or distribution of any ad. In the event of
interruption of display or distribution of any ad, TelegramAds’ sole obligation will be
to restore service as soon as practicable.
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Limitation of Liability. In no event shall TelegramAds be liable for any
consequential, incidental, indirect, punitive, special or other similar damages and any
loss of profits, loss of revenue, loss of use, whether under tort, contract or other
theories of recovery, even if it has been aware or advised of the possibility of such
damages. THE CUMULATIVE LIABILITY OF TELEGRAMADS FOR ALL CLAIMS RELATING TO THE IO,
REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY
ADVERTISER UNDER THE IO DURING THE THREE (3) MONTHS PERIOD PRIOR TO THE DATE THE CAUSE
OF ACTION AROSE.
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Indemnification: Advertiser agrees to defend, indemnify and hold harmless
TelegramAds and each of its affiliates and their respective directors, officers,
shareholders, employees and representatives from and against any and all damage, injury,
liability, loss, costs and expense (including all court costs and reasonable attorneys’
fees) in relation to any proceeding or other claim, whether or not involving a third
party claim, relating to (i) third party’ claim in relation to Advertiser’s use of the
services hereunder, (ii) Advertiser’s alleged breach of or failure to perform
Advertiser’s obligations or representations or warranties in these Terms or an IO , or
(iii) any claim related to the ads, the advertising materials, any website(s),
application(s) or materials linked or related thereto, and/ or the content of or
representations made in or the services or products related therewith, (iv) any claim
based on an assertion that any material provided in relation to these Terms or an IO
infringe or misappropriate a patent, trademark or copyright or any other intellectual
property right, and (v) the collection, processing or use of personal information by or
on behalf of the Advertiser. TelegramAds will have the right to control the defense of
any claim involving TelegramAds.
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Data Protection. For the purposes of these terms ‘Applicable Data
Protection Law’
shall mean: (a) any applicable local implementing legislation of the Data Protection
Directive; (b)from 25th May 2018, the General Data Protection Regulation ((EU) 2016/679
(“GDPR”), read in conjunction with and subject to any applicable UK national legislation
that provides for specifications or restrictions of the GDPR’s rules; (c) from the date
of implementation, any applicable local legislation that supersedes or replaces the GDPR
in a country or territory or which applies the operation of the GDPR as if the GDPR were
part of any applicable local legislation; and (d) any other applicable data protection
or privacy law of any jurisdiction. TelegramAds and the Advertiser agree to comply with
the relevant provisions of Applicable Data Protection Laws. To the extent that any party
processes any personal data that is either Controlled (as defined in Schedule 1) by
another party in relation to this Agreement or Processed (as defined in Schedule 1) by
another party on behalf of a third party Controller, it shall comply with the provisions
contained in Schedule 1 of this Agreement. Where relevant, Advertiser warrants and
undertakes that it has obtained and shall obtain all necessary consents (in accordance
with all applicable law, including Applicable Data Protection Law) in relation to any
Personal Data Controlled by the Advertiser and Processed (each as defined in Schedule 1)
by TelegramAds in accordance with this Agreement.
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Miscellaneous. The IO and these terms will be governed and construed in
accordance
with the laws of the State of Israel without giving effect to conflict of laws
principles. Any dispute or claim arising out of or in connection with an IO or these
terms shall be adjudicated in Tel-Aviv-Jaffe. This Agreement is not intended to and
shall not be construed to give any third party any interest or rights (including,
without limitation, any third party beneficiary rights) with respect to or in connection
with any agreement or provision contained herein or in the IO. Neither party may assign
or transfer its rights under this Agreement without the prior written consent of the
other party; provided that such consent is not required in the case of merger,
acquisition or sale of all, or substantially all, of the assigning party’s assets, stock
or business. The parties hereto are independent contractors and this Agreement does not
create an agency, joint venture or partnership. Any notice permitted or required by this
Agreement will be in writing and transmitted by e-mail to the receiving party at the
address provided. Any such notice will be deemed to have been received on the same
business day if sent by during normal business hours of the recipient, and if not sent
during normal business hours, then on the recipient’s next business day. The waiver by
either party of any default or breach of this Agreement will not constitute a waiver of
any other or subsequent default or breach. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective only to the minimum
extent necessary without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provisions in any other jurisdiction.
Neither party will be liable to the other for any delay or failure to perform any
obligation under this Agreement if the delay or failure is due to circumstances beyond
the reasonable control of the non-performing party. This Agreement, including all
applicable Attachments and addendums hereto, constitutes the entire agreement between
the parties concerning the services and related Confidential Information. It supersedes,
and its terms govern, all prior proposals, agreements, or other communications between
the parties, oral or written, regarding such subject matter. TelegramAds reserves the
right to modify, from time to time and in its sole discretion, any of the terms of this
Agreement and Advertiser waives the right to receive notifications for changes. In the
event that Advertiser continue the use of the services, it shall be deemed as acceptance
by Advertiser of the modifications or changes. If Advertiser does not agree to the
modifications or changes, Advertiser shall provide TelegramAds with written notification
and stop using the services. No online click-through or online terms and conditions or
policies shall be deemed to have modified this Agreement and the terms herein or any
applicable IO signed in relation thereto, notwithstanding any requirement to technically
click on or accept any such terms.