Terms of Service
Rational Marketing Ltd. ( “The Company”) provides various services in the field of digital marketing including, among others, marketing and media buying services (the "Services").
Further to your request to use the Services provided by the Company, below are the terms and conditions under which the Services will be provided:
For the purpose of this terms of service, each of The Company and you shall hereinafter also be referred to individually as "Party" and collectively as "Parties".
During the Term (as defined in Section 15 below), The Company shall provide you with the Services and/or any additional services as further agreed between you and The Company in writing and in advance, including by way of email or other digital correspondence.
Notwithstanding to the contrary, it is hereby clarified that The Company will not provide Services with respect to:
Entities and individuals from the following countries or territories: State of Israel, United States of America, Syrian Arab Republic, Islamic Republic of Iran, Democratic People's Republic of Korea (North Korea), Sudan (North Sudan), Republic of the Union of Myanmar, Republic of Cuba, Lebanese Republic, Republic of Crimea and any of the Crimea Region countries, Republic of Zimbabwe, Republic of Belarus, Russia Federation ( "Restricted Country/ies");
Customers under the age of 18 ( "Restricted Underage Client/s");
In consideration for the Services, you will pay a fee as further agreed between you and The Company in writing, including by way of email or other digital correspondence (collectively, the "Fees").
The Fees exclude any and all applicable taxes duties and charges (including but not limited to any (bank) transaction fees), which shall be paid by you. Unless different payment terms are agreed between you and The Company in writing, The Company will invoice you on a monthly basis up to an amount of US$50,000 (fifty thousand US dollars) (the "Monthly Threshold"). In the event that the monthly payments exceed the Monthly Threshold, then The Company shall invoice you on a weekly basis. You shall make payment of the invoice within 7 (seven) days of receipt thereof. Late payments shall be subject to a late payment charge of 12% per annum.
It is hereby clarified that pursuant to the Israeli Value Added Tax law 5736-1975 (the "VAT Law"), The Company may not be able to issue an invoice to you without adding to it the applicable VAT, if you are an Israeli entity or person and/or in certain other cases, as will be agreed from time to time by the Israeli Tax Authorities or any other competent regulatory body and as advised by The Company to Customer.
You shall execute the Know Your Client Procedure Form, attached here to as Schedule A (the "KYC Form"). Please be advised that execution of the KYC Form to the full satisfaction of the The Company is condition to the provision of the Services.
Warranties and Exclusion of Warranties
You represent and warrant that (a) you have the full authority to enter into and to perform your obligations under this Terms of Service and that your performance under this Terms of Service will not violate any agreement, understanding or commitment with a third party; and (b) in fulfilling your obligations under this Terms of Service you will in all material respects comply with and act in accordance with all applicable laws, rules and regulations.
Each Party will inform each other if it has reason to believe that the provision of Services as contemplated hereunder violates any law, regulation or right of any third party
YOU AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RESPONSIBILITY AND RISK. YOU ACCEPT THE SERVICES "AS IS" AND "AS AVAILABLE" AND ACKNOWLEDGES THAT THE COMPANY MAKES NO OTHER WARRANTY AND DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
Customer Material and Obligations
You may provide The Company with certain material (including your branded material) to be used by The Company in the provision of the Services ( "Customer Material"). The Company shall not use such Customer Material except for the provision of Services hereunder. You hereby grant The Company a non-exclusive, non-assignable, non-transferable, royalty-free right to use, display and publish the Customer Material in connection with the Services provided hereunder. You warrant that no Customer Material (a) infringes the intellectual property rights, moral rights or publicity rights of any third party; (b) contains any defamatory, libelous, sexual, pornographic or otherwise offensive material; or (c) contains any viruses, worms or other malware.
You shall provide The Company with access to your online tools and systems, required for provision of the Services.
The Company has all right, title and interest in the name "The Company", and its trademarks and logos, and its proprietary know-how used to provide the Services hereunder. If you provide The Company with any feedback concerning the Company’s Services, nothing in this Terms of Service or in the course of dealing of the Parties shall impose any confidentiality obligation in respect of such feedback. No rights are granted hereunder by estoppel or implication.
"Confidential Information" means any business and technical information disclosed by one Party to the other Party that is identified as confidential or proprietary, or which should reasonably be understood to be confidential or proprietary. Confidential Information does not include information which receiving party can show (a) is or has become publicly available without any breach of this Terms of Service; (b) was in its possession prior to disclosure; (c) was provided by a third party having a lawful right to make the disclosure; (d) was independently developed by the receiving party without reference to or use of the Confidential Information; or (e) is required to be disclosed by law or a court order, provided the receiving party provides prompt written notice of the requirement and reasonably cooperates with disclosing party as reasonably necessary to limit or eliminate such requirement. Receiving party will not use the Confidential Information of the disclosing party except for performance of its obligations under this Terms of Service. The terms and conditions of this Terms of Service, including without limitation any pricing terms hereof, shall be deemed the Confidential Information of The Company. Data provided by you shall be deemed your Confidential Information.
Data and Privacy
During the provision of the Services, The Company may have access to certain data or information concerning the end users and your customers ( “Information”). The Information shall be deemed your Confidential Information and The Company shall not disclose such data to third parties or use such data except for the provision of Services hereunder, provided however that The Company may use such data for its own internal purposes such as the general improvement of its Services or in order to recommend Services to third parties.
You shall maintain Information in accordance with all applicable privacy and data protection law and regulation including for avoidance of doubt the General Data Protection Regulations ( “GDPR”), as may be amended from time to time.
You confirm that you have commercially reasonable physical, technical, organizational and administrative security measures and policies in place to protect all Information in your possession, or by your authorized personnel acting on your behalf, from and against unauthorized access, use and/or disclosure including without limitation in accordance with the GDPR.
You represent and warrant that no action, claim, proceeding, compliant, inquiry, audit or investigation is pending or, to your best knowledge, threatened against you or any of your officers, directors, or employees (in their capacity as such) by any private party or any governmental authority, foreign or domestic, with respect to data and/or privacy laws and regulations. You are and have been in compliance in all material respects with all laws relating to data loss, theft and breach of security notification obligations and shall maintain full compliance during the Term, including without limitation under the GDPR. There has been no material loss, unauthorized access to or other misuse by or on behalf of you of such data, and, to your knowledge, no third party misused any data collected by it.
The Company is not a data retention service. You must create backups of your data, and The Company shall have no responsibility or liability in respect of any loss off or damage to any of your data.
You will defend, indemnify and hold harmless The Company for any damages, losses, costs and expenses resulting from any third party claims to the extent relating to: (a) a breach by you of your representation or warranties hereunder; (b) use or misuse of the Services; (c) infringement of a third party's intellectual property or other right. The Company will (i) provide you with prompt written notice of any claim for which indemnification is sought; (ii) cooperate fully with you in defending the applicable claim; and (iii) provided you diligently defend the claim with reputable and recognized legal counsel, allow you to control the defense and settlement of such claim. No settlement may be entered into without the consent of The Company if such settlement would require any action from or impose any obligation on The Company. Subject to the foregoing, the Company will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
Limitation of Liability
IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOUR OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE SERVICES OR THIS TERMS OF SERVICE. IN NO EVENT SHALL THE COMPANY'S MAXIMUM CUMULATIVE LIABILITY UNDER ANY CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNTS PAID BY CUSTOMER TO THE COMPANY FOR THE SERVICES IN RESPECT OF THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH A CLAIM OR CAUSE OF ACTION AROSE
Term and Termination
The term of this Terms of Service shall commence as of the Effective Date and shall continue for a period of one year thereafter (the "Initial Term"). Following the Initial Term, this Terms of Service shall automatically renew for subsequent terms of one year each (each a "Renewal Term" and, together with the Initial Term, the "Term") unless one of the parties provides the other with written notice of its desire not to renew this Terms of Service at least 30 days prior to the applicable Renewal Term. The Parties may agree in writing to different term and termination provisions. Either party may terminate this Terms of Service if the other party breaches its obligations under this Terms of Service and does not cure such breach within 5 days of the receipt of written notice thereof. Upon the termination or expiration of this Terms of Service (a) The Company shall cease the provision of all Services hereunder; and (b) You shall make prompt payment of all amounts due hereunder, including but not limited in respect of any uncompleted work performed by The Company. Any understandings between the Parties in writing may contain additional terms regarding the termination of this Terms of Service. Sections 2, 6, 8 – 15 and 18 shall survive the termination or expiration of this Terms of Service for any reason. Except as otherwise set forth herein or in any other understanding between the Parties in writing, no party shall have any liability for the termination of this Terms of Service in accordance with its terms.
The Company may subcontract its rights and obligations hereunder, provided that The Company shall at all times retain the responsibility and liability to you for the performance of the Services hereunder. The parties are independent contractors and neither party nor its personnel shall be deemed an employee, partner, agent or joint venture partner. Each party is solely responsible and liable for the taxes, insurance premiums and employment benefits of its personnel. This Terms of Service is non-exclusive; nothing herein prohibits The Company from creating or offering any similar product or service or entering into any similar agreement with any other party.
You agree that The Company may disclose that you are a customer of The Company and are receiving the Services, including by displaying your name and logo on The Company’s website and other marketing materials.