CodeFuel DisplayFuel Agreement
Please read carefully the terms and conditions of this CodeFuel DisplayFuel Agreement (“Agreement”). This Agreement is a legal agreement between you and CodeFuel Ltd. (“CodeFuel”, “we”, or “our”), which governs your receipt of revenues in connection with and in relation to DisplayFuel (as defined below).
This Agreement supplements and does not replace the Publisher Agreement between CodeFuel and you as a Publisher (the “Publisher Agreement”), and this Agreement is subject to the terms and conditions of the Publisher Agreement, except as specifically set forth herein. Capitalized terms not defined herein shall have the meanings assigned thereto in the Publisher Agreement.
By selecting the check box next to the sentence which says, “Yes, I want DisplayFuel now and I accept the Agreement” (or similar language provided by CodeFuel), you are agreeing to be bound by this Agreement. You also agree to the use of: (a) electronic means to complete this Agreement and to provide you with any notices given pursuant to this Agreement; and (b) electronic records to store information related to this agreement.
If you do not accept this Agreement in its entirety, you may not make DisplayFuel available from the Toolbar(s). If you agree to this Agreement on behalf of a business, you represent and warrant that you have the authority to bind that business to this Agreement, and your consent to this Agreement will be treated as the agreement of the business. In that event, “Publisher”, “you”, and “your” will refer and apply to that business. CodeFuel recommends that you print out or save a local copy of this Agreement for your records.
- ModificationCodeFuel reserves the right to modify and/or change this Agreement at any time and without prior notice to you. If CodeFuel modifies this Agreement, it will post the modified Agreement on its website or provide you with notice of the modification. CodeFuel will also update the “Last Updated Date” at the bottom of the page. By continuing to use DisplayFuel or to access your Publisher Account after CodeFuel has posted a modification of this Agreement on its website or has provided you with notice of a modification, you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to terminate this Agreement in accordance with Section 7.2. You can review the most current version of the Agreement at any time at http://www.CodeFuel.com/legal/DisplayFuelAgreement.
- DefinitionsFor purposes of this Agreement, the following terms shall have the following meanings:
- “Content” means data, information, graphics, links, web pages, signs, images, software and code, files, text, advertisements, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.
- “Effective Date” means the date on which you agree to the terms and conditions of this Agreement.
- “Events” means leads, including without limitation, clicks, click-throughs, sales, registrations or impressions.
- “Monetized App” means an app with revenue-generating Content that is available to End Users from DisplayFuel.
- “Monetized App Revenues” means 40% of the revenues received by CodeFuel from the various Monetized App providers or other third parties as a result of the End Users’ usage of the Monetized Apps.
- “DisplayFuel” means an app on the Toolbar(s) that includes Monetized Apps.
- Scope of Agreement; License
- Subject to the terms and conditions of this Agreement, Publisher may receive revenues as a result of End Users’ usage of the Monetized Apps.
- If the Effective Date is upon the creation of your first Toolbar in accordance with the Publisher Agreement, then this Agreement will apply to that Toolbar and all subsequent Toolbars created by using the CodeFuel Technology, and if the Effective Date is when you already have an active Publisher Account with CodeFuel (i.e., you have Toolbar(s) associated with your Publisher Account), then this Agreement will apply to all Toolbars created as of the Effective Date.
- Subject to the terms and conditions of this Agreement and those of the Publisher Agreement, CodeFuel hereby grants to Publisher a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable license or sublicense, as applicable, during the Term to make DisplayFuel available from the Toolbar(s). All rights which are not expressly granted herein are reserved by CodeFuel. Publisher acknowledges and agrees that DisplayFuel (including the Monetized Apps) will be considered as part of the CodeFuel Technology for purposes of this Agreement and all the terms and conditions set forth in the Publisher Agreement with respect to the CodeFuel Technology will apply to DisplayFuel.
- Disallowed Activities
- Publisher may not, directly or indirectly, nor permit any person or entity to: (i) artificially inflate the number of Events through any deceptive or misleading practice, method or technology including, without limitation, the use of any spyware, parasite-ware, device, program, robot, Iframes, hidden frames, click spam, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, live person performing an Event; and (ii) implement or allow so-called “drive-by downloads” to occur off any Monetized App (i.e., implementing or allowing any software installation process or procedure to be initiated as the direct or indirect result of a web page view or click.)
- Publisher may not establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points, incentives or other compensation to be earned in connection with generating Events, or otherwise attempt to induce End Users to click on any part of the Monetized Apps.
- If Publisher generates any Event through the use of fraudulent means of traffic generation (as determined by CodeFuel at its sole discretion), Publisher will forfeit all the revenue which Publisher may have been entitled to receive for all the Monetized Apps which are included in DisplayFuel, not just the revenue earned from the Monetized Apps associated with the fraudulent activity, and CodeFuel may terminate this Agreement.
- 4. CodeFuel reserves the right, at its sole discretion, to determine if Prohibited Activity (as applicable) has occurred with respect to any Monetized App, at any time, and Publisher agrees to be bound by these determinations. If CodeFuel, in its sole discretion, believes that Publisher or anyone on its behalf has been engaged in Prohibited Activity (as applicable), it may take any and all steps it deems appropriate including without limitation: (a) issue a warning; (b) conduct an investigation; (c) withhold or recover any revenue already paid to Publisher; or (d) terminate this Agreement and the Publisher Agreement.
- Subject to full compliance with the terms and conditions of this Agreement, each calendar month during the Term hereof, Publisher shall be eligible to receive the Monetized App Revenues. Notwithstanding the foregoing, Publisher will not be entitled to receive or retain any amounts hereunder that resulted from any of Publisher’s activities which are in breach of this Agreement and/or the Publisher Agreement.
- Payment shall be made, subject to timely delivery of a proper invoice, in accordance with the payment terms set forth in the Publisher Agreement. For clarity, all payments due to Publisher hereunder will be made together with any payment that may be due to Publisher under the Publisher Agreement.
- Each party shall solely and separately bear and be responsible for paying all applicable taxes, duties and other governmental charges imposed on it with respect to this Agreement. CodeFuel shall have the right to withhold or offset against any payments due to Publisher hereunder any amounts due by Publisher to CodeFuel, including any amounts that CodeFuel may have previously paid to Publisher in excess of amounts which were due to Publisher, and the right to withhold and deduct from any payment hereunder any and all applicable taxes and charges, including without limitation, chargebacks or other fees, if and to the extent determined by CodeFuel to be required according to any applicable law or regulation and/or any agreement, and in each such case, the amount remaining after such withholding or deduction shall be deemed as full payment of any such payment hereunder.
- Notwithstanding the foregoing, and without limiting any other right and/or remedy available to CodeFuel: (a) Publisher will not be entitled to receive or retain any amounts hereunder that resulted from any of Publisher’s activities which are in breach of the Agreement and/or the Publisher Agreement, including without limitation, engagement in any Prohibited Activity, and (b) in the event of a dispute regarding Publisher’s compliance with any requirement set forth herein and/or in the Publisher Agreement, CodeFuel may withhold or reduce any amount of Monetized App Revenues that may be due to Publisher until the final resolution of all such disputes.
- During the Term, Publisher will be able to review an estimate of the Monetized App Revenues in the reporting interface section of its Publisher Account. CodeFuel may change the format, settings and layout of the Publisher Account, including the reporting interface, at any time at its sole discretion. Without limiting any other terms applicable to Publisher’s use of the CodeFuel Technology, CodeFuel will not be liable to Publisher or to any third party for any unavailability or inaccuracy, temporary or otherwise, of any reports, data, or information previously made available via the Publisher Account.
- Publisher acknowledges that CodeFuel’s billing system interfaces with and receives information from third parties and therefore is not error-free, and CodeFuel will not be held liable for any problems, miscalculations, or malfunctions in processing any revenue due to Publisher.
- If CodeFuel determines that Publisher has abused or misused DisplayFuel or any Monetized App, Publisher will no longer get paid for any future activity made with respect to the Monetized Apps by the End Users, and CodeFuel will remove DisplayFuel from the Toolbar(s). CodeFuel may, at its sole discretion, (but has no obligation to) reinstate Publisher’s use of DisplayFuel in the event that Publisher has, to CodeFuel’s satisfaction, taken all necessary remedial actions to resolve any suspected abuse or misuse.
- Representations and Warranties; Disclaimer
- Publisher acknowledges and agrees that its representations and warranties as set forth in the Publisher Agreement will apply to its performance and activities under this Agreement.
- DisplayFuel are provided by CodeFuel “AS-IS”. CodeFuel is not responsible for, nor will CodeFuel have any liability with respect to, the availability or operation of any third party payment services or any payment-related issues associated therewith. Except as expressly provided in this Agreement and to the fullest extent allowable by law, CodeFuel makes no warranty of any kind, whether express, implied, statutory or otherwise, including, without limitation, warranties of merchantability, fitness for a particular use or non-infringement, or those arising in the course of or connected to the performance hereunder, and disclaims such warranties. In addition, CodeFuel does not represent or warrant that: (i) DisplayFuel (including the Monetized Apps) will be error free or that any errors will be corrected; (ii) the operation of DisplayFuel (including the Monetized Apps) will be uninterrupted; or (iii) Publisher will profit or derive any economic benefit from the End Users’ usage of the Monetized Apps.
- Term and Termination
- This Agreement will be in effect as of the Effective Date and will continue in force and effect thereafter until the earlier of: (i) the termination of this Agreement by either party, or (ii) the termination or expiration of the Publisher Agreement (the “Term”).
- Either party may terminate this Agreement, at any time, without cause, by giving the other party seven (7) days prior written notice. In the event that Publisher terminates this Agreement, Publisher is required to instruct CodeFuel to remove DisplayFuel from the Toolbar(s).
- CodeFuel may terminate this Agreement or suspend Publisher’s receipt of Monetized App Revenues at any time in the event that: (a) Publisher breached any provision of this Agreement and/or the Publisher Agreement; (b) Publisher allegedly breached Sections 3.3 and 4 hereof; (c) CodeFuel is required to do so in accordance with applicable law or legal proceeding; or (d) CodeFuel ceases to offer DisplayFuel as part of the CodeFuel Technology. Furthermore, a termination of the Publisher Agreement shall automatically result in termination of this Agreement.
- Upon termination of this Agreement by CodeFuel or by Publisher in accordance with Section 7.2 above: (i) all undisputed Monetized App Revenues balance reflected in the Publisher Account that equal or exceed US$250 that have accrued prior to the date of termination will be payable in full, in accordance with the payment terms and conditions set forth in the Publisher Agreement; (ii) all rights and licenses granted to Publisher under the Agreement will terminate. Furthermore, CodeFuel will have no obligation to maintain any information stored in its database related to Publisher’s receipt of Monetized App Revenues or to forward any information to Publisher or any other person or entity; and (iii) CodeFuel will remove DisplayFuel from the Toolbar(s).
- Notwithstanding the foregoing, in the event of termination of this Agreement by CodeFuel in accordance with Section 7.3, any Monetized App Revenues balance reflected in the Publisher Account will be forfeited.
- Section 7.5 and Section 8 hereof will survive termination of the Agreement.
- This Agreement and the Publisher Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations and understanding with respect to the subject matter hereof, whether oral or written. This Agreement will be governed and construed in accordance with the laws of the State of New York, excluding its conflict of law rules, and applicable federal U.S. laws. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Each party irrevocably submits to the sole and exclusive jurisdiction of the courts of New York State located in New York, New York and the Federal courts of the Southern District of New York. You waive all defenses of lack of personal jurisdiction and forum non-conveniens. Any amendments or modifications to this Agreement must be in writing and executed by an authorized representative of each party. If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter; nor shall waiver of a breach of any provision constitute a waiver of the provision itself. Neither party shall be liable for failure to perform its obligations, or performing in a timely manner, due to any condition beyond its reasonable control, including but not limited to, governmental action, war, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances. Neither this Agreement nor any interest herein may be assigned by Publisher without the prior written consent of CodeFuel. Any unauthorized assignment or transfer shall be null and void. This Agreement shall be binding upon and inure to the benefit of each of the parties and their respective successors and permitted assigns. All notices required or permitted under this Agreement shall be in English and in writing and shall be delivered (a) to CodeFuel – by facsimile, e-mail or other electronic means, by registered or certified mail (postage prepaid) or by overnight courier service, at 950 Tower Lane, Suite 1788, Foster City, CA 94404 or at such other address as CodeFuel shall have furnished to Publisher in writing or that is available the CodeFuel website. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via facsimile or e-mail, (iii) within one (1) business day of being sent by overnight courier, or (iv) within three (3) business days of being sent by registered or certified mail, and (b) to Publisher – to the e-mail address provided by Publisher in connection with the Publisher Agreement and/or its Publisher Account. For purposes of the foregoing, CodeFuel shall be permitted to rely upon the e-mail address provided by Publisher to CodeFuel as provided above and shall not be responsible for delays in the delivery of e-mails which delays are not associated with CodeFuel’s mail server.