INCRMNTAL TERMS OF SERVICE
Incrmntal Ltd. ("Incrmntal") is the owner of a proprietary AI-based incrementality measurement and testing platform that is offered on a software-as-a-services basis and allows marketers to enhance the value of their digital ad spending (the "Platform"). The Platform is described more fully in the then-current version of any supporting technical documentation provided to Client by Incrmntal or available on Incrmntal’s website (“Documentation”). These terms and conditions and the Order Form to which they are attached (the "Agreement") govern Client's use of the Services and the Platform.
1. Access to the Services
The Platform’s features and services available to the Client (“Services”), the applicable use metrics and the associated fees will be based on the license package chosen by Client from the license packages offered by Incrmntal (the "License Package"). Subject to the terms and conditions of the Agreement and the payment of applicable Fees, Incrmntal grants Client a non-exclusive, non-sublicensable, non-transferable and limited right throughout the Subscription Period (as defined in the applicable Order Form), to use and access the Platform and Services solely for Client’s internal business use, subject to the use metrics or scope of use specified in the applicable License Package, including with respect to the number of Authorized Users and number of incrementality tests and number of applications, as made available to Client through Incrmntal's dashboard on the Platform. “Authorized User” means a single named individual user who is an employee, agent, representative or contractor of Client and who has registered to the Platform through access provided by the administrator of Client. Any individual who uses the Platform must be provisioned as an Authorized User. Client is responsible for any and all actions taken by Authorized Users or by anyone using Client’s accounts and passwords.
The Services include integration of the Platform with Client’s Data. Unless otherwise set forth in the Order Form, the initial integration will be free of charge, and any additional integration performed at Client's request or that is required as a result of inaccurate details provided by Client will be subject to the fees set forth in the Order Form.
3. Client Obligations; Access to Data
3.1. Client shall provide or make available to Incrmntal information regarding Client’s online advertising activity, including any existing engagements with media providers and partners, applications and logs, and/or allow Incrmntal to integrate with and pull the relevant data from Client’s datasets (including media vendor data sets), all as required for the purpose of enabling Incrmntal to implement and make the Services available to Client;
3.2. Client confirms and acknowledges that Incrmntal will have access to certain data collected and processed by Incrmntal through the Services relating to the tracking of marketing measurement of Client's end-users to certain advertising platforms ("Data"). Client will be responsible to remove any personally identifiable information relating to any identified or identifiable natural person ("PII") from the Data made available to Incrmntal. To the extent Client cannot or does not remove from such Data, or otherwise submits to Incrmntal, any data containing PII, the terms of Incrmntal's Data Processing Addendum (available at https://incrmntal.com/dpa ) (“DPA”), which is incorporated herein by reference and hereby accepted by Client, will apply. Any collection, transfer or processing of PII in connection with this Agreement or through the Services will be in accordance with any applicable data processing laws and regulations, and subject to the DPA.
4. Insights. Client will have access to insights regarding the value of its ad spending, as made available through the dashboard on the Platform, and as based on the Data provided to Incrmntal with respect to advertising vendors ("Insights"). Client acknowledges that any Insights provided to it are made in accordance with and in reliance on the accuracy and completeness of Data made available to Incrmntal by Client. Client will have the right to use the Insights for its internal business purposes, and may not provide the Insights to any third party without Incrmntal's prior written consent.
5. Support Services. Incrmntal will provide to Client support services applicable to Client's License Package in accordance with Incrmntal’s support policy available at https://incrmntal.com/support-policy as may be amended by Incrmntal from time to time (“Support Policy”). Client acknowledges and agrees that the service levels included in the Support Policy are performance targets only and any failure of Incrmntal to meet any service level will not result in any breach of this Agreement or any payment or liability of Incrmntal to Client.
6.1. Each party represents and warrants that (i) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement, and (ii) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation. Client further warrants and represents that it has and will have during the term of this Agreement the right to make the Data available to Incrmntal in accordance with this Agreement.
6.2. Incrmntal warrants and represents that the Platform and Services: (i) will conform in all material respects to the specifications set forth in the Documentation; (ii) do not and will not infringe on the intellectual property rights of any third party; and (iii) shall at all times be in compliance with applicable law. Client's sole remedy for any non-conformance under clause (i) will be that Incrmntal will use commercially reasonable efforts at no charge to Client to correct any such non-conformance in accordance with the Support Policy. Client represents and warrants that information provided to Incrmntal in connection with the Services, including information required for the integration of the Platform with Client’s Data, is complete and accurate.
7.1. In consideration of the Services, Client shall pay Incrmntal the fees applicable to Client's License Package, as specified in the pricing schedule made available through the dashboard on the Platform (“Fees”). Incrmntal may change the Fees from time to time at Incrmntal's sole discretion. Any changes to the Fees will apply as of the subsequent Subscription Period under Client's License Package.
7.2. Unless otherwise set forth in the applicable Order Form, billing for the Subscription Period(s) will commence upon the Subscription Start Date and continue on a monthly recurring basis thereafter during the Subscription Period(s). Incrmntal will invoice Client for the applicable annual or quaterly Fees in advance (in accordance with the terms set forth in the applicable Order Form). All Fees will be due and payable by Client within thirty (30) days of the invoice date. Payments will be made through the payment processing options available through the Platform or as otherwise required by Incrmntal. The Fees are exclusive of any applicable taxes, which shall be borne by Client, except taxes on Incrmntal's income. If under applicable law taxes are required to be withheld, Client shall pay Incrmntal an amount such that the net amount after withholding of taxes will equal the amount that would have been otherwise payable under this Agreement.
8. Proprietary Rights
8.1. All intellectual property rights in the Platform, Services and Documentation and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with Incrmntal.
8.2. Client shall not (and shall not permit others to): (a) attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Platform, Service or any part thereof for any purpose; (b) represent that it possesses any proprietary interest in Platform, Service, Documentation or any part or derivative thereof; (c) directly or indirectly, take any action to contest Incrmntal's intellectual property rights or infringe them in any way; (d) except as specifically permitted in writing by Incrmntal, use the name, trademarks, trade-names, and logos of Incrmntal; (e) copy any part or content of the Platform or Insights provided in connection with the Data through the Platform, other than for Client's own internal business purposes as permitted in this Agreement; (f) copy any features, functions or graphics of the Platform, or create derivative works of the Platform, or use the Platform or Services to build a competitive product or service; and (g) remove the copyright, trademark and other proprietary notices contained on or in the Platform, Services or Documentation.
8.3. Client hereby grants to Incrmntal: (a) during the term of this Agreement, a non-exclusive, royalty-free, worldwide license to use, reproduce, analyze and prepare derivative works of the Data, for the purpose of providing the Services to Client; and (b) a non-exclusive, royalty-free, worldwide irrevocable license to use, reproduce, analyze and prepare derivative works of the Data, in an aggregate or de-identified form, for the purpose of improving the Platform and Services and otherwise Incrmntal’s research and development activities, including by creating internal databases for the purpose of offering products and services based on the analysis of customer behavior, all subject to Incrmntal’s compliance with applicable law and privacy regulations. All intellectual property rights in the Client products, any data provided by Client hereunder and any part thereof are and will remain exclusively owned by Client.
8.4. From time to time Client or its employees, contractors, or representatives may provide Incrmntal with suggestions, comments, feedback or the like with regard to the Platform or Services (collectively, “Feedback”). Client hereby grants Incrmntal a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Incrmntal’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Platform and Services.
9.1. Each party may have access to certain non-public proprietary, confidential information or data of the other party, regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the "Confidential Information"). The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its directors, officers, employees, advisors or consultants (collectively, the "Representatives") on a strict “need to know” basis only and provided that such Representatives are bound by confidentiality obligations with respect to such Confidential Information at least as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes, except as required to carry out its rights and responsibilities under this Agreement; (c) 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 of similar nature, which shall in any event not be less than a reasonable degree of care. The foregoing confidentiality obligations will not apply to information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party has had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party, as evidenced by the receiving party’s contemporaneous written records; (iii) the receiving party rightfully obtains from a third party that has the right to disclose it without default or breach of any confidentiality obligations; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information. Further, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief, to the extent permitted.
10. Disclaimer; Limitation of Liability
10.1. EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, INCRMNTAL PROVIDES THE PLATFORM, SERVICES AND DOCUMENTATION TO CLIENT WITHOUT WARRANTIES OR REPRESENTATION OF ANY KIND, AND INCRMNTAL EXPRESSLY DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. INCRMNTAL FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE PLATFORM OR ANY RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CLIENT HEREBY ACKNOWLEDGES THAT ANY INSIGHTS PROVIDED BY INCRMNTAL TO CLIENT ARE BASED ON DATA PROVIDED TO INCRMNTAL BY CLIENT OR THROUGH ITS SYSTEM. INSIGHTS CONSTITUTE RECOMMENDATIONS ONLY AND CLIENT SHALL HAVE SOLE DISCRETION WITH RESPECT TO THE APPLICATION AND IMPLEMENTATION OF ANY SUCH INSIGHTS.
10.2. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT INCRMNTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD OR BREACH OF CONFIDENTIALITY AND INTELLECTUAL PROPERTY PROVISIONS SET FORTH UNDER THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, INCRMNTAL'S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO INCRMNTAL DURING THE 12 MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES.
11.1. If a third party makes a claim against Client that Client’s use of the Platform or Services in accordance with this Agreement directly infringe any patent, copyright or trademark or misappropriates any trade secret of such third party (“Claim”), Incrmntal will: (a) defend Client against such Claim at Incrmntal’s expense, and (b) indemnify Client for all damages, costs and expenses (including, without limitation, reasonable legal fees) finally awarded against Client by a court of competent jurisdiction or agreed to in a written settlement agreement entered into by Incrmntal based on such Claim. As a condition to the indemnity obligation under this Section, Client shall provide Incrmntal with: (i) prompt written notice of the Claim; (ii) the right to control and direct the investigation, defense and settlement of such claim; and (iii) reasonable cooperation, at Incrmntal’s expense, in connection with such investigation, defense and settlement.
11.2. Incrmntal’s obligations under this Section 10 will not apply if the underlying Claim arises from or as a result of: (a) Client’s breach of this Agreement, negligence, willful misconduct or fraud; (b) any Data or other Client materials; (c) modifications to the Services by anyone other than Incrmntal; or (d) combinations of the Services with software, data or materials not provided by Incrmntal.
11.3. If Incrmntal reasonably believes the Platform or Services (or any component thereof) could infringe any third party’s intellectual property rights, Incrmntal may, at its sole option and expense, use commercially reasonable efforts to: (a) modify or replace the Platform or Services, or any component or part thereof, to make it non-infringing; or (b) procure the right for Client to continue use the Platform and Services. If Incrmntal determines that neither alternative is commercially practicable, Incrmntal may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Client. In the event of any such termination, Incrmntal will refund to Client a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 10 will constitute Client’s sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Platform and Services.
11.4. Client will defend (at Incrmntal’s request), indemnify and hold harmless Incrmntal and its affiliates, and their respective employees, officers, and directors, from and against any claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Client’s use of the Platform or Services in a manner not authorized by this Agreement; (b) violation of applicable law by Client; (c) alleged breach by Client of any of its obligations under the DPA or alleged infringement or violation of any third party rights by any Data or its submission to Incrmntal; or (d) a dispute between Client and any advertising vendor or its media providers and partners.
12. Subscription Period; Termination
This Agreement will commence upon execution of the Order Form and will remain in effect until expiration of the Subscription Period(s), as set forth therein.
12.1. Either party may terminate this Agreement immediately by giving written notice to the other party if: (i) the other party materially breaches this Agreement and fails to cure the breach within fifteen (15) days after being given written notice thereof (or immediately if the breach is not capable of being cured); or (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
12.2. Upon termination of this Agreement, Client will immediately cease use of the Platform and any Services, each party shall return to the other party all of the other party's Confidential Information in its possession and any outstanding Fees shall be accelerated and become immediately due and payable. Sections 7-10, 11.3 and 12 will survive expiration or termination of this Agreement.
13.1. This Agreement and any annexes thereto constitute the entire agreement between Incrmntal and Client and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. All amendments will be made only in writing.
13.2. Client may not transfer or assign its rights or obligations under this Agreement to any third party. Any purported assignment contrary to this section shall be void.
13.3. If any part of this Agreement is declared invalid or unenforceable for any reason, such part shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the parties, or if it cannot be so modified, then eliminated, and such elimination shall not affect the validity of any remaining portion, which shall remain in force and effect. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance.
13.4. This Agreement is governed by the laws of the State of Israel, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the courts of Tel Aviv, Israel.
13.5. Each party agrees that a breach or threatened breach by such party of any of its obligations under Section 8 or, in the case of Client, Section 7.1, would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
13.6. All notices or other communications hereunder shall be in writing and given in person, by registered mail, by an overnight courier service which obtains a receipt to evidence delivery, or by facsimile or via email transmission with written confirmation of receipt, addressed to the following addresses (or to such other address as any party hereto may designate to the other in accordance with the aforesaid procedure): (a) in the case of Incrmntal, to Incrmntal Ltd., 3 HaArmonim St., Ramat Gan 5258703, Israel, and (b) in the case of Client, to the address set forth in the Order or designated by Client during the registration process. Additionally, if Client's Subscription Period is in effect, Incrmntal may provide any notice to Client through the Platform’s dashboard. All notices and other communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by facsimile or email transmission shall be deemed given on the business day following transmission, and those sent by registered mail shall be deemed given three calendar days after posting. Each party may, upon prior written approval of the other party, issue publicity or general marketing communications concerning its involvement with the other party.