Anzu Terms and Conditions (for Advertisers)

1.     GENERAL

1.1.  These terms and conditions together with your Insertion Order (together – the “Terms“) shall govern the relationship between you and us. For clarity, the terms of the Insertion Order shall supersede all contrary terms set forth in these terms and conditions, unless expressly set forth to the contrary.

1.2.  Where used in these Terms, references to: (a) “you” and/or ”your” mean the advertiser agency and/or advertiser individual and/or affiliate and/or or entity who applied to use our platform and services, and (b) “Anzu”, “we“, “our“, “us” means Anzu Virtual Reality Ltd. and any of its affiliated corporate entities.

1.3.  You own Advertisements (as defined below) and you wish for the Advertisements to be displayed in computer games (each, a ”Game“) which are owned and operated by publishers (the “Publishers“), so that the Advertisements can be viewed by end-users (“End Users“) who use and/or have access to the Game. You understand that the Advertisements which we will deliver on your behalf to the Publisher will be displayed in the Game for a limited amount of time.

1.4.  We will grant you access to our platform environment (the “Platform“) on which you can submit Advertisements that you want to be displayed in the Game by a Publisher as, which we shall carry out for you based on available advertising space allotted to us by the Publisher (the “Service“). Moreover, we will provide you with assistance with organizing, arranging and managing your advertising campaigns to be displayed in the Game, as per an agreed-on budget and/or rates and payouts set out in the Insertion Order. The Service and the Ad Serving Solution (as such term is defined in the Insertion Order shall hereinafter be collectively referred to as the “Anzu Services“).

1.5.  You represent and warrant that you have the power and authority to enter into these Terms, and you agree to be bound by, these Terms. If you do not agree to any of these Terms, please refrain from using the Anzu Services and/or any other service made available by us in accordance with these Terms.

2.     ADVERTISEMENTS

2.1.  For the purpose of providing you with the Anzu Services, you hereby grant us with a non-exclusive, worldwide, royalty-free license to access, display and otherwise use the Advertisements in accordance with the provisions of these Terms. For purposes hereof, “Advertisements” shall mean advertisements, including but not limited to content, promotions, content management, multimedia images, graphics, text, data and advertising materials and/or any other media and/or any other marketing materials displayed in the Game.

2.2.  Subject to these Terms, we will deliver the Advertisements for advertising campaigns on your behalf to the Publisher(s), in order for them to be displayed in the Game, in accordance with the Insertion Order. You hereby agree to specify the information necessary for us to deliver the advertising campaigns to the Publisher(s), and if any information may change you agree to notify us of such change in writing. You hereby acknowledge that we do not control, endorse or adopt any Advertisements, nor will we be responsible or liable in any manner for any Advertisement (including any failures and/or errors in the display of Advertisements), advertising campaigns and/or for the Game, and we bear no responsibility to update or review any of these.

2.3.  You will be solely liable for the Advertisements and acknowledge that you will remain responsible and liable toward us with regard to anything submitted via the Platform and/or used for the Anzu Services. You will indemnify and hold us harmless in the event of any raised claims by the Publisher and/or the End Users and/or any third parties in relation to the Advertisements, including but not limited to, their accuracy and/or their infringing of any third party’s intellectual property rights.

2.4.  All interactions and commitments that you may have with any party in connection with the Advertisements must be professional, proper and lawful under applicable legislation, rules, regulations or laws (including any laws relating to the content and nature of any advertising or marketing) and otherwise comply with the terms of these Terms.

2.5.  You understand that we have no control over and make no representations with regards to (i) any final actions, omissions and/or decisions that the Publisher makes with respect to the Advertisements being displayed in the Game; (ii) the quality of the Game display; and (iii) any third party advertisements being displayed alongside the Advertisements and/or displayed instead of the Advertisements. You will hold us harmless and indemnify us against any claims raised by you and/or any third party in relation to any such display of Advertisements in the Game.

2.6.  For the avoidance of doubt, under no circumstances will we be held responsible and/or liable for any deviation from the Insertion Order in the event the Publisher chooses differently.

2.7.  You will have the ability to measure, track and analyze the performance of your campaigns and advertising activities based on the collected advertising campaign data with our tracking technology and analytics solution, and to build and export reports via our reporting services and/or with the help of the Anzu representative who is in charge of managing the Anzu Services for you.

2.8.  You acknowledge that we may approach you at any time in writing for the purpose of making adjustments and/or replacements in the Insertion Order in relation to the displayed Advertisements and/or advertising campaigns and we reserve the right to make changes to the Anzu Services by providing you with prior written notice.

2.9.  You undertake not to have any direct contact with any of our Publishers and understand that in the event we suspect that you are communicating with a Publisher we shall terminate all advertising campaigns in connection thereto and/or terminate these Terms with you.

 

3.     THE PLATFORM

3.1.  You will protect the Platform from third party access and will keep safe and confidential any relevant usernames or passwords associated therewith against any unauthorized access and use; you will take full responsibility for any authorized or unauthorized third-party access and/or use of the Platform and/or Anzu Services.

 

3.2.  Without derogating from Section 3.1, you may grant access to the Platform and/or Anzu Services to third parties on your behalf, provided, however, that you shall: (i) require that such third parties agree to be bound by these Terms; (ii) ensure that such third parties comply fully with all provisions of these Terms, and (iii) be fully responsible and liable for the acts and omissions of such third parties

 

3.3.  You will not, and will not allow any third party to: (i) directly or indirectly access, launch or activate Platform and/or Anzu Services or any other technology, content, software, materials and/or documentation belonging to us, or otherwise incorporate any of these in any software, Game, site or other means other than under these Terms; (ii) copy, distribute, rent, sell, lease, lend, sublicense, transfer any of the Platform and/or Anzu Services or make any of these available to any third party except as expressly set forth and in accordance with these Terms; (iii) decompile, reverse engineer, or disassemble the Platform and/or Anzu Services; (iv) create or attempt to create a substitute or similar service or product or derivative works based on the Platform and/or Anzu Services, and/or create any product or service competitive with the Anzu Services; (v) modify, remove, or obscure any proprietary notices or anything of similar nature that appear on the Platform and/or via the Anzu Services during the use and operation thereof; or (vii) use or modify any feature or functionality of the Platform and/or Anzu Services in order to collect personally identifiable information of any third parties. You hereby acknowledge that misrepresenting ownership and fraudulent claiming of any of the Platform and/or Anzu Services is strictly prohibited and, without limiting any other rights or remedies available to us, may result in a permanent ban from using the Platform and/or Anzu Services or terminating these Terms altogether.

3.4.  Without derogating from the above, we do not grant you the right to use the Platform and/or Anzu Services in respect to any Advertisement and/or advertising campaign that:

3.4.1.            Contains any content of any nature whatsoever that is libelous, discriminatory, obscene, unlawful, illegal, sexually explicit, pornographic or violent or that is, in our sole discretion, otherwise unsuitable;

3.4.2.            As their direct or indirect objective, or as a direct or indirect objective of any third party, advertises, or targets the marketing of the Advertisements to any persons who are under the age of legal consent as may apply in the jurisdiction that you are targeting with regard to the content of each Advertisement and/or advertising campaign, respectively);

3.4.3.            Infringes our and/or any other third party intellectual property rights, including but not limited to, illegal streaming and/or downloading; copies or resembles our and/or any third party’s property in whole or in part; or disparages us and/or any third party or otherwise damages our and/or any third party’s goodwill or reputation in any way;

3.4.4.            Uses, runs and/or includes any spiders, robots, virus, Trojan horse or any other kind of malware, spyware or any other malicious code or code that may be used to circumvent any of our security measures; or

3.4.5.            Violate the terms of use and any applicable policies of any third parties.

3.5.  We reserve the right, but are under no obligation, to pre-screen, review and monitor any and/or all Advertisements and may remove or block any if we reasonably determine that such action is appropriate to prevent errors or any other harm to the Platform and/or Anzu Services, or if we believe the Advertisements may violate any of our policies, and/or in order to avoid or limit any of our liability.

 

4.     INTELLECTUAL PROPERTY RIGHTS

4.1.  We own all intellectual property rights in and to the Platform and Anzu Services and you shall not gain any ownership or any other right in any of these and/or anything in relation thereto.

4.2.  You will comply with any third party terms, policies, or guidelines applicable to the development and distribution of the Advertisements, including, without limitation, any third-party terms and conditions applicable to the Advertisements or any operating system supported by us now or in the future, and will not cause us to be in violation of any such third party terms.

4.3.  You may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information to us, about the Platform and/or the Anzu Services (collectively “Suggestions“). You understand that any Suggestions submitted to us via the Platform and/or the Anzu Services and/or by email and/or any other way of communication shall be non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of any Suggestions for any purpose, commercial or otherwise, without any acknowledgment and/or compensation to you.

4.4.  You shall only use the Platform and Anzu Services in accordance with these Terms, any guidelines we provide from time to time and any applicable laws, legislation, rules and regulations. Without derogating from the provisions of this section, if you make any amendment, addition, modification and/or derivative work in respect of the Platform and/or Anzu Services, any such modification, addition, amendment and/or derivative work will be solely owned by us and you will have no right or title in such modification, addition, amendment and/or derivative work in any way whatsoever.

 

5.     Representations and Warranties; Disclaimers

5.1.  You represent and warrant to us that: (i) you are the owner of the Advertisements or legally authorized to act on behalf of the owner of the Advertisements and have all necessary right, power and authority to enter into these Terms and to transfer to us the license and rights granted herein; (ii) your performance under these Terms will not violate any agreement or obligation between you and any third party or any applicable law, ordinance or regulation or cause us to be in violation of any agreement or obligation with any third party or any applicable law, ordinance or regulation; (iii) all Advertisements and any material displayed therein: (a) comply with any and all applicable laws, statutes, ordinances and regulations, including but not limited to any privacy, spam and/or data protection laws and regulations; (b) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property or privacy; (c) are free from viruses, malware, or other harmful component and any other contaminants of any nature whatsoever; (iv) the Advertisements provided by you do not violate any applicable third party policies, including but not limited to, third-party platform policies; and (v) if applicable, any technology behind the Advertisements provided via the Platform and/or Anzu Services does not collect any data beyond what is expressly agreed to by us under these Terms.

 

5.2.  THE PLATFORM AND ANZU SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. 

5.3.  WE DO NOT WARRANT THAT THE PLATFORM AND ANZU SERVICES WILL OPERATE ERROR-FREE, THAT THE PLATFORM AND ANZU SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT WE WILL CORRECT ANY ERRORS IN THE PLATFORM AND ANZU SERVICES.  YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.

6.     REPORTS & PAYMENTS

6.1.  We will specify the pre-payment consideration (the “Consideration“) that is due and payable by you to us prior to the launch of each advertising campaign in the Insertion Order, which shall be paid to us in advance.

6.2.  We will provide you with reports concerning the Consideration’s calculations and such form, content, and frequency of the reports shall be agreed on in the Insertion Order. The reporting system shall be based solely on the data derived from the Anzu Platform (unless otherwise specified in the Insertion Order), in accordance with the payment plan and rates as outlined in the Insertion Order; such calculations will be considered true and correct unless proven incorrect by written evidence.

6.3.  In order to make payments in connection with these Terms, we may use a third-party payment processor (“Payment Processor“) to link the payment information that you provide, including your address, tax, and bank account information, via the Insertion Order. The processing of the Consideration payments will be subject to the terms, conditions and privacy policies of the Payment Processor, and/or your bank (in addition to our Privacy Policy).

6.4.  The Consideration is exclusive of any taxes, levies and/or charges, including, but not limited to, VAT (collectively, “Taxes”) and is to be received net of any Taxes. In any case in which any Taxes are levied on the Consideration (including, but not limited to, by way of withholding), you will pay us an additional amount to fully compensate us for such Taxes, so we will receive the Consideration in full, unless specified otherwise in the Insertion Order.

7.     TERM AND TERMINATION

7.1.  These Terms will enter into force and terminate in accordance with the provisions of the Insertion Order; where the Insertion Order does not include provisions to this effect, these Terms will enter into force upon the execution of the Insertion Order by you, and could be terminated without cause by either us or you, by providing a 30 (thirty) day prior written notice to the other party. Without derogating from the aforementioned, it is understood that your payment obligations in Section 6 shall survive termination of these Terms and shall remain in effect until the full Consideration is transferred to us. In the event that either party is in breach of these Terms and fails to take actions to rectify and cure any such breach (if curable) following written notice from the other party describing the breach, the other party may terminate these Terms by providing a 72 (seventy-two) hour prior written notice to the other party. Without derogating from the aforementioned or any other right or remedy we may have, we reserve the right to suspend your use of the Platform and/or Anzu Services, if we suspect any of the activities that contravene the provisions of Section 3, or any fraudulent activity done by you and/or anyone on your behalf until an internal Anzu investigation is concluded regarding this matter and/or terminate these Terms immediately with prior notice.

7.2.  The following will apply upon termination of these Terms: (a) we shall cease providing you the Platform, Anzu Services, and any other additional services in relation thereto granted to you in these Terms; (b) you shall destroy any and all copies of the Platform and/or Anzu Services in your and/or anyone on your behalf’s possession or control; (c) you shall return all of our Confidential Information to us; and (d) you shall pay us any outstanding Consideration within 7 (seven) days of termination.

7.3.  Upon termination, the provisions of these Terms shall cease to have an effect, save for the following provisions of these Terms which shall survive and continue to have an effect, in accordance with their express terms or otherwise indefinitely: Sections 2.5, 3.3, 4, 7.2, ‎‎7.3, 7.3, 8, 9, 10, 11 and 12.

8.     PRIVACY

8.1.  You represent, warrant and covenant that you shall be fully responsible for: (i) complying with any and all applicable laws, including without limitation, privacy laws, such as the General Data Protection Regulation (“GDPR”), Children’s Online Privacy Protection Act (“COPPA”), the California Consumer Privacy Act (“CCPA”), and any other applicable law relating to the collection, use and sharing of information about End Users by you and anyone on your behalf.

8.2.  To the extent that in accordance with applicable law a Data Processing Agreement between us is required, please request it from your Anzu account manager and return it signed to us.

8.3.  You shall defend, indemnify and hold us harmless at all times for any claims related to, or arising from, an End Users and/or any third party in connection with your use and/or transfer of the personal data in connection with the Platform and Anzu Services, or any failure to comply with any data protection or privacy law or regulation (including executing a data processing agreement).

8.4.  If you do not comply, when applicable, with your obligations under applicable law, including, without limitation, as a data controller and/or as a business, you may not access or use the Platform and Anzu Services in a non-compliant manner that will cause Anzu to be in a non-compliant position under applicable law.

9.     LIMITATION OF LIABILITY AND INDEMNIFICATION

 

9.1.    In no event will we be liable for any indirect, special, incidental, consequential or punitive damages, direct, indirect, incidental, punitive or consequential damages, or for any loss of data, revenue, business or reputation, that arises under or in connection with these Terms or that results from the use of, or the inability to use, the Platform and/or Services, even if we have been advised of the possibility of such loss.

9.2.   Notwithstanding anything to the contrary between the parties, in any event, our total, aggregate liability for all damages and losses arising under or in connection with these Terms, or that result from your use of or inability to use the Platform and/or Anzu Services, or in connection with any Publisher and/or End User, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the Consideration actually received from you over the previous three months preceding the date of the event giving rise to the liability.

9.3.  You shall defend, indemnify and hold us harmless from and against any and all claims, demands, liabilities, losses, damages, costs and expenses (including legal fees) resulting to or arising from: (i) your breach of these Terms and/or your use of the Platform and/or Anzu Services; (ii) your violation of any third party right, including without limitation any copyright, property, or privacy right; and/or (iii) any claims regarding the Advertisements and/or advertising campaigns. Without derogating from or excusing your obligations under this section, we reserve the right (at your own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you if you choose not to defend or settle it.  You agree not to settle any matter subject to an indemnification by you without first obtaining our express approval. Without prejudice to any other rights or remedies available to us under these Terms or otherwise, we shall be entitled to set off any applicable payments otherwise payable by us to you hereunder, against any liability of you to us, including (but not limited to) any claims we have against you resulting from or arising from, your breach of these Terms and/or your use of the Platform and/or Anzu Services.

10.  CONFIDENTIAL INFORMATION

10.1.      Each party shall keep confidential and shall not disclose to any third party any and all proprietary information or confidential information disclosed to it by the disclosing party, and/or relating to the business, processes, practices, products, customers, accounts, finance or contractual arrangements or trade secrets of the disclosing party and any information concerning the Platform and/or Anzu Services, or the substance of any report, recommendations, advice, test disclosed in relation to the aforementioned (“Confidential Information“), and shall use such Confidential Information solely for the performance of its obligations under these Terms. If either party becomes aware of any breach of confidence by any of its employees, agents, or sub-contractors it shall promptly notify the other party and give the other party all reasonable assistance in connection with any proceedings, which the other may institute against any such persons. The parties further agree to keep confidential and not to disclose to any third party, any of the terms and conditions in these Terms.

10.2.      The obligations in Section 10.1 shall not apply to Confidential Information already known to either party prior to disclosure by the other party of Confidential Information to it, to information that is in the public domain or which becomes part of the public domain through no fault of the receiving party, or to any information that is required to be disclosed by law. Either party may disclose Confidential Information that has been approved in advance in writing by the other party for disclosure.

10.3.      No press release in respect of the execution of these Terms or any matters arising therefrom may be released by you in respect of these Terms without our express written approval of the other party, save that each shall be entitled to make reasonable references to the other party and to the provisions of these Terms in their own corporate literature in connection with the promotion of that party’s business. Unless specifically agreed otherwise in the Insertion Order, Anzu shall be entitled to make or send public announcement, communication or circular concerning these Terms, and you hereby permit Anzu to display your name and logo in Anzu’s marketing materials and/or website.

 

11.  FORCE MAJEURE

11.1.      If either party is prevented or delayed in the performance of any of its obligations under these Terms  by Force Majeure, that party shall:

11.1.1.     Promptly serve notice in writing on the other party specifying the nature and extent of the circumstances giving rise to Force Majeure and the measures it is taking to remedy and/or mitigate the effects;

11.1.2.     Use all reasonable endeavors without being obliged to incur any expenditure to mitigate the effects of Force Majeure and/or bring the Force Majeure event to a close, or to find a solution by which these Terms may be performed despite the continuation of the Force Majeure event;

11.1.3.     Have no liability in respect of the performance of such of its obligations as are prevented by the Force Majeure events during the continuation of such events, and;

11.1.4.     For such time after the affected party ceases to perform its obligations as is necessary for that party, use its reasonable endeavors to recommence its affected operations in order for it to perform its obligations.

11.1.5.     For the purposes of these Terms “Force Majeure” means any cause beyond the reasonable control of the parties including, without limitation, any of the following: (i) Act of God; (ii) war, insurrection, riot, civil disturbance, acts or attempted acts of terrorism; (iii) fire, explosion, flood, storm; (iv) pandemic or epidemic (or similar regional health crisis); (v) other theft or malicious damage; (vi) Strike, lock-out, or other industrial dispute (whether involving the workforce of the party so prevented or any other party), third party injunction; (vii) national defense requirements, acts or regulations of governmental or quasi-governmental authorities; or (vii) inability to obtain essential power, raw materials, labor, malfunction of machinery or apparatus.

12.  MISCELLANEOUS

12.1.      Any notice or other documents to be given under these Terms shall be in writing and shall be deemed to have been duly given if delivered by hand or sent by recorded delivery to the other party, in accordance with the information provided in the Insertion Order. Any notice sent by email shall be deemed received on the earlier of an acknowledgement being received or 72 (seventy-two) hours from the time of transmission, unless otherwise specified in the Insertion Order.

12.2.      There is no relationship of exclusivity, partnership, joint venture, employment, agency or franchise between you and us under these Terms. Neither Party has the authority to bind the other (including the making of any representation or warranty, the assumption of any obligation or liability and/or the exercise of any right or power), except as expressly provided in these Terms.

12.3.      Except where you have received our prior written consent, you may not assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with these Terms or any rights under these Terms, or sub-contract any or all of your obligations under these Terms, or purport to do any of the same. Any purported assignment in breach of this clause shall confer no rights on the purported assignee.

12.4.      These Terms shall be governed by and construed in accordance with the laws of Israel without giving effect to conflicts of law principles. You irrevocably agree to submit, for the benefit of us, to the exclusive jurisdiction of the courts of Tel-Aviv for the settlement of any claim, dispute or matter arising out of or concerning these Terms or its enforceability and you waive any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum.

12.5.      Whenever possible, each provision of these Terms will be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of these Terms is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of these Terms or any other provision hereof.

12.6.      These Terms embody the complete agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes any prior agreement or understanding between the parties in relation to such subject matter. Each of the parties acknowledge and agree that in entering into these Terms, it has not relied on any statement, representation, guarantee warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether a party to these Terms or not) other than as expressly set out in these Terms. Each party irrevocably and unconditionally waives all claims, rights, and remedies which but for this clause it might otherwise have had in relation to any of the foregoing.

 

Last Updated: December 2020