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Service Agreement

 

This Services Agreement ("Agreement") is entered by and between Moburst Ltd., a company incorporated under the laws of the State of Israel, with an address at 3 Rapaport St., Kfar Saba, (together with its affiliates, "Moburst") and the party accepting this Agreement ("Customer"). The term "Effective Date" means the date on which Customer accepts this Agreement, including by agreeing to a Statement of Work (as defined below) that references this Agreement. The term "Services" means the services provided by Moburst pursuant hereto.

Changes may be made to this Agreement from time to time. Customer's continued use of the Services following a change will be deemed acceptance to the amended Agreement.

  1. Services. During the Term (as defined below), Moburst shall provide Customer with Services pursuant to an effective Statement of Work and the terms and conditions of the applicable Service Category Exhibit (as defined below).
  2. Statements of Work.From time to time, Moburst and Customer may mutually execute statements of work for provision of Services hereunder, each of which shall refer to this Agreement and describe the Services to be provided by Moburst and any applicable terms and conditions ("Statement of Work" or "SOW"). No SOW shall be effective unless agreed to in writing by both Moburst and Customer, including by email.
  3. Service Category Exhibits. The terms and conditions set forth in the specific exhibits listed below (each, a "Service Category Exhibit") shall govern the provision of specific categories of Services. For example, if an SOW provides that Moburst shall provide Customer with ASO services and Media services, then the terms and conditions of Exhibit B shall be applicable to the provision of the ASO/SEO services and the terms and conditions of Exhibit Cshall be applicable to the provision of the Media services.

Exhibit A – Product Consulting Services

Exhibit B – ASO/SEO Services

Exhibit C – Media Services

Exhibit D – Creative and Production Services

Exhibit E – Influencer Marketing Services

Exhibit F – Creators Network Services

Exhibit G – Website or Mobile Development Maintenance Services

Exhibit H – Social Media Management Services

Exhibit I – Link Building Services

  1. Consideration.
  • Customer will pay the fees specified in the applicable SOW, which exclude all applicable taxes, duties, and charges (including transaction fees), which shall be paid by Customer. Unless different payment terms are agreed in the SOW, Moburst will invoice Customer prior to the provision of the Services and Customer shall make payment within 14 days of the date specified on the invoice. Unless otherwise agreed in an SOW, all fees are non-refundable. Late payments shall be subject to a late fee of 12% per annum.
  • In the event that Customer fails to make timely payments in accordance with the terms hereof, Moburst shall have the right to demand reimbursement for any and all reasonable legal fees and expenses incurred in the process of recovering outstanding payments, including but not limited to attorney's fees, court costs, and related expenses.
  • In consideration of the fact that Moburst allocates resources toward any agreed project, if Moburst is unable to provide Services during the period agreed in the SOW (customarily, six months) ("Performance Period") due to reasons not attributable to Moburst, such as Customer's delay in providing materials or feedback, Customer's continued, unfounded rejection of recommended influencers, any prepaid amounts shall first be applied toward payment of a minimum management fee in the amount of US$4,500 per month. For a period of six (6) months following the expiration of the Performance Period ("Extension Period"), subject to execution of an additional SOW, Customer may use any remaining outstanding amount, as confirmed by Moburst, as payment in respect of any Services to be provided under the additional SOW. Any such outstanding amount not utilized by Customer during the Extension Period is non-refundable.
  • To the extent that the parties agree to extend the terms of any SOW on a month-to-month basis without entering into a new SOW, any media management fees payable in respect of the extension period shall be raised to 18%.
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  1. Representations and Warranties.
  • Mutual Representations.Each party represents and warrants that (a) it has the full authority to enter into and to perform its obligations hereunder and that doing so will not violate any obligation it has to any third party and (b) in fulfilling its obligations hereunder, it will comply with all applicable laws and regulations.
  • Moburst Representations.Moburst represents and warrants that (a) it will perform all Services described in a mutually agreed SOW faithfully, diligently, and with skill and ability in accordance with industry standards; (b) the provision Services will comply with all applicable laws and regulations; (c) to the best of its knowledge, the Deliverables (as defined in the applicable Service Category Exhibit or SOW) do not infringe any third-party intellectual property rights. The above warranties do not apply to Third-Party Elements or Customer Material (both as defined below).
  • Customer Representations. Customer represents and warrants that: (a) no Customer Material or Trademarks (as defined below) (i) infringe any rights of any third party; (ii) contain any defamatory, libelous, sexual, pornographic or otherwise offensive material; or (iii) contain any viruses, worms or other malware; and (b) it shall not provide Moburst with any Personal Data or Personal Information (both as defined below), unless specifically agreed between the parties in writing and in advance.

  1. Privacy. In the event that Moburst processes any Personal Data (as defined under Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation)) or Personal Information (as defined in the California Consumer Privacy Act of 2018, Cal. Civil Code Title 1.81.5, as amended by the California Consumer Privacy Rights Act of 2020) and the regulations thereunder, as may be amended from time to time, the processing of such Personal Data or Personal Information shall be subject to the Data Processing Agreement ("DPA").

  2. Intellectual Property
  • Customer Intellectual Property. Customer may provide Moburst with: (i) certain material (including Customer-branded material) to be used by Moburst in the provision of the Services and development of the Deliverables ("Customer Material") and (ii) Customer's name, logo, and trademarks ("Trademarks"). Customer has and shall retain all right, title and interest in the Customer Material and Trademarks ("Customer Intellectual Property"). Customer grants Moburst the right to use, copy, modify, create derivative works of, and publish the Customer Material and Trademarks for the purpose of provision of the Services or as otherwise permitted hereunder. Moburst shall use the Trademarks in accordance with Customer's guidelines, as may be provided by Customer.
  • Moburst Intellectual Property. Moburst has and shall retain all right, title and interest in its name, trademarks, and logos, and its proprietary know-how used to provide the Services ("Moburst Intellectual Property"). Nothing herein shall be deemed to grant to Customer any rights in any Moburst Intellectual Property. Moburst may purchase or license certain elements from third parties, including as requested or directed by Customer ("Third-Party Elements"). If Customer provides Moburst with any feedback concerning Moburst's Services, Moburst shall be free to use such feedback without restriction and shall not be subject to any confidentiality obligations in respect of such feedback.
  • Deliverables. During the provision of the Services, Moburst may provide Customer with certain Deliverables, as defined in the applicable Exhibit. All Deliverables are provided in closed format not readily modifiable by Customer. Subject to the payment by Customer of all amounts due in connection with the relevant Deliverables, the Deliverables (excluding any Third-Party Elements or raw materials) shall be owned by Customer and Moburst hereby assigns to Customer all such Deliverables, effective after payment of relevant amounts.

  1. Review and Acceptance. Moburst shall provide any agreed Deliverables in accordance with the timelines in the applicable SOW. Customer shall have three (3) days from the date of provision of the Deliverables to examine the Deliverables. If during such period Customer requests modifications to the Deliverables that are within the scope of the SOW, Moburst shall modify the Deliverables accordingly and shall redeliver the Deliverables. The foregoing procedure may be repeated up to two (2) times. Subsequent to the second redelivery (i.e. the third delivery), Customer may only request additional modifications to the Deliverables to the extent the Deliverables contain material defects or do not materially conform to the agreed specifications, and only within three (3) days of redelivery. To the extent no modifications are requested during the designated period, the Deliverables shall be considered accepted. Moburst shall have no obligation to implement any changes to Deliverables which are not within the scope of the SOW. To the extent Moburst agrees to provide additional modifications beyond the agreed scope, such modifications shall be subject to payment of additional fees at Moburst's standard rate of US$200 per hour plus VAT or other applicable taxes.

  2. "Confidential Information" means any business and technical information disclosed by one party ("Disclosing Party") to the other party ("Receiving 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 its breach of this Agreement; (b) was in its possession prior to disclosure; (c) was provided by a third party having the right to make the disclosure; or (d) is required to be disclosed by law or a court order ("Order"), provided the Receiving Party provides prompt written notice of the Order and cooperates with Disclosing Party as reasonably necessary to limit or eliminate such Order, to the extent permitted by such Order. Receiving Party will not use the Confidential Information of the Disclosing Party except for performance of its obligations under this Agreement. The terms and conditions of this Agreement, including without limitation any pricing terms hereof, shall be deemed the Confidential Information of Moburst. Customer Material shall be deemed Confidential Information of Customer, provided however, that Moburst may publish Customer Material as necessary for provision of the Services and may use any data received from Customer (including but not limited to Customer Material) for its own internal purposes, such as the general improvement of its Services or in order to recommend Services to third parties.

  3. Non-solicitation. Customer agrees that during the Term and for a period of twelve (12) months thereafter, Customer will not, directly or indirectly, employ, hire, cause to be employed or hired, entice away, solicit, or establish a business with any officer, employee, or agent of Moburst, or any other person who is employed or engaged by Moburst (including any influencers engaged in the course of provision of the Services) within the twelve (12) months immediately prior to such employment or engagement, or in any manner persuade or attempt to persuade any such individual to terminate its engagement with Moburst. Nothing herein will prohibit general solicitations for employment not specifically directed towards personnel of Moburst.

  4. Indemnification
  • Moburst Indemnification. Moburst will defend, indemnify, and hold harmless Customer for any damages, losses, costs and expenses resulting from any third-party claims to the extent relating to the incorporation by Moburst of any materials (excluding Customer Material and Third-Party Elements) in a Deliverable that infringes third party copyrights or trade secrets.
  • Customer Indemnification. Customer will defend, indemnify, and hold harmless Moburst for any damages, losses, costs, and expenses resulting from any third party claims to the extent relating to: (i) the breach by Customer of its representation or warranties hereunder; (ii) infringement of a third party's intellectual property or other rights, including but not limited to relating materials included in the Customer Material, Third Party Elements or Trademarks; (iii) Customer's use or misuse of the Services.
  • Procedure. The party seeking indemnification will (i) provide the other party with prompt written notice of any claim for which indemnification is sought, (ii) cooperate fully with the indemnifying party at its own expense in defending the claim, and (iii) provided that the indemnifying party diligently defends the claim with reputable and recognized legal counsel, allow indemnifying party to control the defense and settlement of the claim. No settlement may be entered into without the consent of the party seeking indemnification if such settlement would require any action from or impose any obligation on such party. The party seeking indemnification will have the option to participate in any matter or litigation through counsel of its own selection at its own expense.

  1. Disclaimer of Warranties. Except as expressly set forth herein, all Services and Deliverables are provided on an "As-Is" and "As Available" basis and Moburst disclaims all implied and statutory warranties, including in respect of merchantability and fitness for a particular purpose.

  2. Limitation of Liability. Moburst shall not be liable, whether in contract, warranty, tort (including negligence), product liability or other theory, to Customer or any other person or entity for any indirect, incidental, special, consequential, punitive, or exemplary damages or damages for loss of profit, reputation, business, or data arising out of this Agreement. In no event shall Moburst's aggregate liability under this Agreement exceed the total amount of fees actually paid by Customer to Moburst for Services (excluding any media spend).

  3. Term and Termination. This Agreement shall commence as of the Effective Date and shall continue for a period of one year ("Initial Term") and 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 Agreement at least 30 days prior to the applicable Renewal Term. Each SOW may contain its own term and termination provisions, and the renewal of this Agreement does not imply the renewal of any SOW beyond the term therein. Either party may terminate this Agreement or any SOW if the other party breaches its obligations under this Agreement or the applicable SOW and does not cure such breach within five days of the receipt of written notice thereof. Upon termination or expiration of this Agreement (a) Moburst shall cease the provision of all Services and (b) Customer shall make prompt payment of all amounts due, including but not limited in respect of any uncompleted work performed by Moburst and in respect of the minimum SOW term as specified in the relevant SOW. Sections 5, 7, 9-13, and 17 shall survive the termination or expiration of this Agreement for any reason.

  4. Relationship. The parties are independent contractors and neither party or its personnel shall be deemed an employee, partner, agent or joint venture partner of the other party. This Agreement is non-exclusive; nothing herein prohibits Moburst from creating or offering any similar product or service or entering into any similar agreement with any other party.

  5. Publicity. Customer agrees that Moburst may disclose that Customer is a customer of Moburst, including by displaying Customer's name, logo and improvement statistics on Moburst's website and other marketing materials.

  6. General. This Agreement (including any SOWs and Service Category Exhibits) sets forth the entire agreement between the parties regarding the subject matter hereof and supersedes all other agreements or understandings between the parties regarding such matters. In the event of a conflict among the documents comprising this Agreement, the documents shall be interpreted with the following precedence, and the document with the higher precedence shall control: (a) the SOW, (b) the applicable Service Category Exhibit; and (c) the body of this Agreement. No amendments or waivers shall be effective unless in writing and executed by both parties. Neither party may assign the Agreement without the other party's prior written consent, provided however that either party may assign all of its rights and obligations hereunder in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of its share capital or assets. Assignments in violation of the foregoing shall be void. Nothing in this Agreement creates any agency, employment, joint venture, or partnership relationship between the parties. This Agreement shall be governed by the laws of the State of Israel without regard to conflicts of law provisions thereof. The parties agree that the competent courts in Tel-Aviv – Yafo, Israel shall have exclusive jurisdiction regarding all disputes hereunder, and the parties expressly consent to such jurisdiction. Having agreed to the foregoing exclusive jurisdiction in good faith, the parties hereby waive any challenge to venue and jurisdiction in such courts. Notwithstanding the above, nothing herein shall prohibit Moburst from bringing a claim in any court of competent jurisdiction (i) to seek provisional relief where necessary to prevent the dissemination of Confidential Information or protect its intellectual property or (ii) to recover payment in case of non-payment by Customer. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, such part shall be interpreted to give maximum effect to its terms as possible under applicable law, and the remainder of this Agreement shall remain in effect. Moburst may provide notices hereunder to the email address provided by Customer upon registration.

 

Exhibit A – Product Consulting Services

  1. In this Exhibit, "Deliverables" means any product designs or specifications created by Moburst in the course of providing the Product Consulting Services.

  2. Disclaimers. Moburst makes no warranty that any Services or Deliverables provided shall be useful to Customer's business. Customer acknowledges that there is no guarantee that the Services will result in any or any additional revenue. Customer retains all responsibility and liability for its products and services, and Moburst does not accept any responsibility or liability in respect thereof.

 

Exhibit B – ASO/SEO Services

  1. Cooperation. Customer shall cooperate fully with Moburst in the provision of ASO/SEO services, including providing Moburst with (a) access to and permission to communicate directly with Customer's developers and designers; (b) full access to traffic statistics for analysis and tracking purposes; (c) to the extent Customer wishes Moburst to make submissions or updates of any mobile application to an application store, sufficient access and permissions to make such submissions and updates; and (d) all relevant creative materials including logo and screenshots in open format in all requested languages. Customer shall fill out the ASO/SEO brief, as provided by Moburst, in a timely manner. If Customer does not provide the foregoing, Moburst may charge an additional fee of US$200 plus VAT, per hour in order to produce such materials. Moburst's inability to provide the Services due to Customer's failure to provide materials, information or access, shall not relieve Customer from its payment obligation.

  2. In the course of provision of the ASO/SEO services and as contemplated in the applicable agreed SOW, Moburst may provide written reports, such as a report concerning competitors in Customer's industry, targeted keywords, or a review of Customer's application or website traffic.

  3. Keyword Boost. As part of the Services, Customer may request that Moburst obtain certain 'keyword boost' services from a third party on Customer's behalf in order to increase download rates of Customer's mobile application. Customer acknowledges that Moburst provides no representations or warranties with respect to such Services, including, without limitation, representations as to the ownership, legality, or compliance with terms of applicable download platforms. Without derogating from Customer's obligations under the Agreement, Customer agrees to defend, indemnify and hold harmless Moburst for any damages, losses, costs, and expenses resulting from any claims to the extent relating to use of such Services on behalf of Customer.
  1. Disclaimers. Customer acknowledges that Moburst has no control over the policies or ranking algorithms of search engines and that certain keywords or phrases may be subject to competition. Moreover, search engine rankings can fluctuate as a result of ongoing changes to the ranking algorithm or ASO/SEO efforts by competitors. As such, Moburst does not guarantee any top or consistent ranking for any particular keyword or search item. Moburst makes no guarantee that the ASO/SEO services will improve Customer's ranking or traffic.

 

Exhibit C – Media Services

  1. Product. An "Approved Product" means the mobile application, website, other digital or other product referred to the SOW. Customer will promptly inform Moburst of any material changes in the themes or content of any Approved Product.

  2. Moburst may suspend Customer's access to or use of the Service at any time, in its sole discretion, for any improper, unlawful or otherwise fraudulent use of the media services.

  3. Customer Obligations. Customer will not attempt to interfere with or disrupt media services. Customer is solely responsible for ensuring the continued operation of Customer's product and display of advertisements. Customer is entirely responsible for its Approved Product and for complying with applicable laws in connection with its Approved Product, including posting a privacy policy that: (i) discloses the use of, as applicable, cookies, web beacons and similar tracking technologies and (ii) complies with all applicable laws, regulations, and best practice standards.

  4. Customer Warranties. Customer represents and warrants that: (a) it owns without restriction, or has obtained all necessary license rights, to all content, including without limitation, text, images and video, published on or through Customer's product sufficient to permit Moburst to display advertising pursuant to this Agreement; (b) its use of the media service will be in compliance with all applicable laws and regulations; (c) it will not fraudulently or purposely manipulate the content of its product in such a manner that may result in the serving of less contextually relevant advertising; and (d) it will not: (i) generate fraudulent, automated or otherwise invalid actions, clicks or impressions; (ii) use robots or other automated query tools or computer generated search requests or any other search engine results optimization techniques or software unless authorized by Moburst; or (iii) authorize a third party to do any of the foregoing.

  5. Customer acknowledges that there is no guarantee that any minimum level of revenue will be generated as a result of the media service.

  6. Additional Terms. The minimum payment in respect of each media campaign is US$4,500. As such, media commissions are payable even if Customer cancels or terminates a campaign. If Customer shifts the dates of any campaign by more than two weeks, Customer shall compensate Moburst for committed resources in the amount of 30% of any applicable media commission. Customer agrees that the foregoing represents reasonable compensation to Moburst. All shifts in campaign dates are subject to the prior consent of Moburst.

 

Exhibit D – Creative and Production Services

  1. In this Exhibit, "Deliverables" means any works of authorship, including, written works, audio-visual works, videos, animations, banners, screenshots and articles created by Moburst in the course of the provision of Creative and Production services as contemplated in an SOW, excluding raw materials such as PSDs and other assets purchased by Moburst.

  2. Intellectual Property. Without derogating from anything in the Agreement, it is acknowledged that Moburst makes no representations with respect to the ownership of any Third-Party Elements that are incorporated within the Deliverables.

 

Exhibit E – Influencer Marketing Services

  1. Engagement of Influencers. Moburst will identify relevant influencers and engage with such influencers directly for the benefit of Customer, subject to approval by Customer of the relevant influencers, and work to optimize influencer marketing activity on behalf of Customer. It is clarified that influencers will be engaged directly by Moburst and Customer shall have no contractual relationship with any influencers.

  2. Third-Party Platform. In order to provide the Influencer Marketing services, Moburst may use Customer's third-party platform on which Customer has an account. All use such account by Moburst shall be on Customer's behalf and at its instruction and shall be subject to the terms of service determined by such third party.

  3. In this Exhibit, "Deliverables" means any works of authorship, including, videos, posts, or articles created by Moburst or influencers engaged by it on Customer's behalf for the purpose of display on social media platform as part of provision of the Influencer Marketing services.  With respect to any Deliverables created as part of the Influencer Marketing Services, Customer shall be granted the right to use and publicize such Deliverables as part of it marketing efforts for a period of 12 months, unless otherwise agreed in the SOW.

  4. Intellectual Property. Without derogating from anything in the Agreement, it is acknowledged that Moburst makes no representations with respect to the ownership of any Third-Party Elements that are incorporated within the Deliverables.

  5. Additional Terms. Moburst will utilize the influencers budget to cover for its hourly fees + 15% media management fee.

 

Exhibit F – Creators Network Services

  1. Engagement of Creators. Moburst will identify relevant creators and engage with such creators directly for the benefit of Customer, subject to approval by Customer of the relevant creators in order to create certain agreed Deliverables on behalf of Customer. It is clarified that creators will be engaged directly by Moburst and Customer shall have no contractual relationship with any creators.

  2. In this Exhibit, "Deliverables" means any works of authorship, including, videos, posts, or articles created by creators engaged by Moburst on Customer's behalf. 

  3. Intellectual Property. Without derogating from anything in the Agreement, it is acknowledged that Moburst makes no representations with respect to the ownership of any Third-Party Elements that are incorporated within the Deliverables.

 

Exhibit G – Website or Mobile App Development and Maintenance Services

  1. Deliverables. For purposes of this Exhibit, "Deliverables" means any code, text, graphics, multimedia, or other elements developed in the course of the provisions of the Website or Mobile App Development and Maintenance Services contemplated under the applicable SOW.

  2. Third-Party Providers. In order to provide the Development and Maintenance Services, Moburst may use one of its trusted third-party service providers. Moburst shall remain liable to Customer for any act or omission by such third-party service provider.

 

Exhibit H – Social Media Management Services

  1. Access to Platforms. To the extent required for provision of the Social Media Management Services, Customer shall provide Moburst with any access necessary to Customer's social media accounts, web analytics, search engine dashboards, and other platforms.

  2. Customer acknowledges that as part of the Social Media Management Services, Moburst may post certain content on Customer's social media or make certain changes to Customer's existing posts on social media. Any posts or changes made by Moburst to such posts, shall not require any specific approval by Customer.

  3. Representations. Customer represents and warrants that all instructions given to Moburst in connection with the Social Media Management Services shall be in compliance with all applicable laws, regulations, and rights of third parties.

 

Exhibit I – Link Building Services

  1. Link Building. Moburst will pursue relevant backlinks on behalf of the Customer, including in website links, social media posts, and other digital content on the internet, in an effort to increase linking and drive traffic to Customer's product. Moburst does not commit to provide a specific number of links, as these may depend on various factors beyond Moburst's control. Customer shall have the opportunity to approve each link suggested by Moburst and Moburst shall bear no liability in connection therewith.

  2. Disclaimer. Without derogating from any disclaimers in the Agreement, it is clarified that Moburst does not guarantee that the links obtained will result in additional traffic or revenue and does not provide any warranties relating to the content on properties on which links are placed.

  3. Additional Terms. Moburst will utilize the link building budget to cover for its hourly fees + 15% media management fee.

 

Last updated March 1, 2023

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