Monetization Services Terms and Conditions
Last Updated: March 14, 2021
The following terms and conditions including any outside policies referred to or linked from these terms (the “Standard Terms”) shall be incorporated by reference into and govern all Insertion Orders (“IO”, IO together with these Standard Terms, the “Agreement”) between CodeFuel Ltd. on its own behalf and on behalf of its subsidiaries and affiliated companies (“CodeFuel”) and the Partner set forth on the IO (the “Partner”). In any case of contradiction between an IO and these Standard Terms, the terms of the IO shall prevail. All capitalized terms used but not defined in the IO shall have the meanings set forth in these Standard Terms. By signing and submitting an IO to CodeFuel, Partner indicates that it has read and consented to these Standard Terms.
1.1 “Approved Marketing Materials” means such materials to be used by the Partner during the provision of the Services, limited to the materials that fully comply with the terms of this Agreement and all relevant guidelines and policies referenced hereunder, including the Documentation, the CodeFuel Guidelines and/or any other instructions, as updated by CodeFuel from time to time.
1.2 “CodeFuel Guidelines” shall mean the guidelines, policies and any other instructions provided by CodeFuel to the Partner at any time during the Term, including without limitation, the guidelines included in CodeFuel’s website at the following URL:https://www.codefuel.com/legal/, as well as all other government regulations applicable for the type of activity conducted by the Parties hereunder, and including all guidelines and instructions either provided or referenced in this Agreement.
1.3 “CodeFuel Technology” means the CodeFuel’s dynamic online advertising solution incorporating CodeFuel’s Monetization Tools (whether owned, assigned or licensed by CodeFuel from a third party) as set forth in the IO, or otherwise provided, offered or made available by CodeFuel to its Partner/s from time to time, for use on the Partner Approved Marketing Channel.
1.4 “CodeFuel Solution” means the CodeFuel Technology, the CodeFuel assets including without limitation any of CodeFuel’s proprietary software and\or services as provided under the scope of this Agreement (whether owned by CodeFuel, assigned to, or licensed by it), CodeFuel’s owned and operated applications, software, including proprietary browser extension and CodeFuel hosted SERP (Search engine results pages).
1.5 “Documentation” means any explanatory materials, guidelines or other documents related to the operation and use of the CodeFuel Solution, whether provided in digital or physical form, or made available online by CodeFuel, including without limitation, the integration requirements, best practices as well guidelines, polices and other requirements shared with the Partner directly or via third party,.
1.6 “End User” means an individual that downloaded, installed and is actively using the CodeFuel Solution.
1.7 “Fraudulent Activity” means those activities set forth in: https://www.codefuel.com/legal/fraudulent-activity-prohibited-activity/.
1.8 “Intellectual Property Right(s)” means the right and title in and to all intangible legal rights, whether or not registered, including, without limitation, patents, trademarks, copyrights, moral rights, goodwill, know how, databases, trade secrets, confidential business and technical information.
1.9 “Marks” means trademarks, service marks, trade names, trade dress and associated logos, whether or not registered.
1.10 “Monetization Tools” means various first and third party monetization solutions provided or made available by CodeFuel through the CodeFuel Solution, including, without limitation, access to paid and none-paid search results and any kind of services, advertising, email campaigns, related content and other sponsored or paid products or services, including advertisements.
1.11 “Monetization Source” means the default provider(s) of web search services, functionality or features made available by CodeFuel.
1.12 “Personal Data” means any data related to individual or identifies an individual or may with reasonable effort identify an individual.
1.13 “Partner Media Buying Services” shall mean the promotion of the CodeFuel Solution in various Partner Approved Marketing Channels for the purpose of diverting End Users traffic into the CodeFuel Solution, as shall further be instructed by CodeFuel and agreed in each IO, all in accordance with the terms of the Agreement.
1.14 “Partner Distribution Services” means the marketing and distribution of the CodeFuel Solution for the purpose of making available the CodeFuel Solution to End Users for installation and use, as shall further be instructed by CodeFuel and agreed in each IO, all in accordance with the terms of the Agreement.
1.15 “Partner Materials” means any product, website, domain and content provided or used by Partner in connection with the Agreement, including without limitation, any materials used by the |Partner during the provision of the Services, the Partner’s Marks and any other content , developed, provided by or sourced from the Partner (including any Partner materials used by CodeFuel in connection with the CodeFuel Solution, always excluding the CodeFuel Solution, CodeFuel Technology, CodeFuel Marks and any part thereof and/or any materials included in them).
1.16 “Partner Approved Marketing Channel” means those pre-approved applications, technologies, services, web sites or web pages in which the Partner will market, promote and distribute the CodeFuel Solution, which have been approved by CodeFuel for the sole purpose of providing the Services as set forth in the IO or otherwise approved from time to time by CodeFuel in accordance with the terms of the Agreement.
1.17 “Prohibited Activity” means the activity set forth in https://www.codefuel.com/legal/fraudulent-activity-prohibited-activity.
1.18 “Services” shall mean both the Partner Media Buying Services and the Partner Distribution Services.
2.GRANT OF LICENSE.
2.1 Subject to the terms and conditions of the Agreement, CodeFuel hereby grants to Partner, a worldwide, non-sublicensable, non-transferable right and license to (i) use the CodeFuel Solution for the provision of the Services via the Partner Approved Marketing Channel, and (ii) use the Documentation internally for the sole purpose of providing the Services and the CodeFuel Solution to End Users, as permitted and applicable under the Agreement.
2.2 All rights which are not expressly granted herein are reserved by CodeFuel. Partner may not make any use of the CodeFuel Solution in whole or in part in any manner not expressly permitted by the Agreement.
2.3 Subject to the terms and conditions of the Agreement, Partner hereby grants to CodeFuel a royalty-free, non-assignable, non-transferable, non-sublicensable license during the Term to: use display and access the Partner Materials through or in connection with the CodeFuel Solution.
3. CODEFUEL’S RIGHTS AND OBLIGATIONS.
3.1 CodeFuel retains the exclusive right to determine and set, from time to time, the advertisers and/or Monetization Source, or any functionality or features available in or presented through or in connection with the Services and the CodeFuel Solution, including, without limitation, any advertisements, search results, sponsored results or the use of the Partner Materials and the Approved Marketing Materials in connection with the CodeFuel Solution.
3.2 During the Term, CodeFuel may, in its sole discretion, update and/or upgrade the CodeFuel Solution or discontinue any part thereof.
3.3 Partner agrees that CodeFuel may (a) feature the Partner name and Partner Materials in different marketing outlets and/or collateral, including, without limitation, newsletters, case studies, web pages and email or ad campaigns; (b) identify Partner as a user of the CodeFuel Solution on CodeFuel websites, client lists and in other marketing materials and channels as well as, when required, to any and all providers of advertising; and/or (c) use the Partner Materials or the Approved Marketing Materials to create an online demonstration version of the Partner Approved Marketing Channel hosted by CodeFuel for display and presentation purposes only to potential Partners, including, without limitation, the Monetization Source.
3.4 Subject to the availability of data from third party providers, CodeFuel shall provide Partner with access to an online portal where Partner can view reports and analysis regarding the performance of the CodeFuel Solution in a form determined from time to time by CodeFuel (the “Reports”). Notwithstanding the foregoing, CodeFuel will not be liable for any unavailability or inaccuracy, temporary or otherwise, of any data or information provided within the Reports.
3.5 At any given time, by any electronic media, CodeFuel or the Monetization Source at CodeFuel’s expense, will be entitled to examine those records of Partner and the Partner’s use of the CodeFuel Solution that are reasonably necessary to determine Partner’s compliance with its obligations under the Agreement. Partner undertakes to cooperate with CodeFuel to the reasonable extent required by CodeFuel in order to perform the compliance examination set forth in this section and shall immediately correct any noncompliance or follow any instructions provided by CodeFuel following said examination. In case of a material noncompliance, CodeFuel shall be entitled to immediately terminate Partner’s right to use the Solution in accordance with this Agreement.
3.6 Upon any material change to the Standard Terms (excluding changes made to comply with legal requirements), CodeFuel will provide Partner with written notice. Upon receipt of such notice and for a period of forty-eight hours thereafter, Partner will be entitled to immediately terminate the Agreement without any right for compensation. In the event that CodeFuel fails to inform the Partner accordingly, it will not be construed as a breach of the Agreement and any such material change will not be applicable to the Partner until Partner receives notice of such change. Otherwise, all other changes to the Standard Terms and any amendments made to comply with legal requirements (including the data transfer clauses referred to in Section 7.7 of the Standard Terms) will become effective immediately upon their posting on the applicable web page. CodeFuel will also update the “Last updated” on the applicable web page upon any such change.
4. PARTNER’S RIGHTS AND OBLIGATIONS.
4.1 Partner may seek to use the CodeFuel Solution through or in connection with one or more of the Partner Approved Marketing Channel as detailed in the applicable IO, in accordance with the terms of the Agreement, and subject to such Partner Approved Marketing Channel’s full compliance with the terms and conditions of the Agreement. Each such Partner Approved Marketing Channel will be subject to CodeFuel’s prior written approval. Partner further undertakes to obtain CodeFuel`s prior written approval before any material change is made to the design, architecture or functionality of the Partner Approved Marketing Channel version that was approved by CodeFuel. Breach of this Section 4.1 shall entitle CodeFuel to any recourse out lined in this Agreement, including without limitation Section 5.8 below.
4.2 Under no circumstances may the Partner offer, promote or provide access to any part of the CodeFuel Solution, either directly or indirectly, on websites, applications or online services or through the use of any advertisement, content, or other materials that (i) contain any Prohibited Activity or Fraudulent Activity , or (ii) are directed to children under 13. Partner further undertakes that it shall not, nor shall it allow any other person or entity to engage in any Prohibited Activity or Fraudulent Activity or use the CodeFuel Solution and any of its related features in connection with or in any manner that constitutes Prohibited Activity or Fraudulent Activity.
4.3 Partner acknowledges that CodeFuel shall have the right to disapprove previously approved Partner Approved Marketing Channel in the event that any of those are determined by CodeFuel, to contain Fraudulent and/or Prohibited Activity. Upon receipt of notice of CodeFuel’s rejection of a new or previously approved Partner Approved Marketing Channel, Partner shall immediately cease using the CodeFuel Solution with any or all of them referenced in the notice. In such case, CodeFuel may terminate the Agreement with immediate effect upon providing written notice to Partner and CodeFuel shall not have any liability to Partner whatsoever.
4.4 Partner will not, and shall ensure that no other person or entity will, or attempt to, interfere with or disrupt the CodeFuel Solution or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the CodeFuel Solution for Partner’s own use as permitted herein). Furthermore, Partner will not, and will ensure that no other party or entity will: (a) use, copy, create derivative works of or modify the CodeFuel Solution or any part thereof; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the CodeFuel Solution to any other person or entity; or (c) use the CodeFuel Solution in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Agreement or with any applicable law. Partner agrees not to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Solution or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so.
4.5 Partner will not modify, remove or interfere with any part of the CodeFuel Solution, including, without limitation, the advertisements or any element or functionality provided by the Monetization Source(s). Without derogating from the foregoing, Partner agrees to display the CodeFuel Solution, and all elements, features and functionalities thereof in the format received from CodeFuel, and Partner may not change the design, format, order or content of the CodeFuel Solution or any part thereof, without limitation, any CodeFuel or third party advertisements, content or code, nor alter, modify or otherwise interfere with the operation of any hyperlinks contained therein.
4.6 Without derogating from CodeFuel’s right of termination under the Agreement, Partner acknowledges and agrees that at any time during the Term, if CodeFuel believes, in its sole judgment, that a Prohibited Activity or Fraudulent Activity is taking place or Partner is otherwise in breach of the Agreement, CodeFuel shall have the right (without notice to Partner) to (i) remove and take any measures needed to prevent or correct the (a) Prohibited Activity or Fraudulent Activity from being used in connection with the CodeFuel Solution, or (b) use of the CodeFuel Solution in breach of the Agreement; and/or (ii) suspend or cease to provide the Partner with any of the CodeFuel Solution.
4.7 In the event that Prohibited Activity or Fraudulent Activity pertaining to the CodeFuel Solution or any other activity that could constitute a breach of the Agreement is detected by Partner or comes to the Partner’s attention, Partner shall immediately remove such activity and report to CodeFuel its actions.
4.8 Partner will not use the CodeFuel Solution, the Partner Approved Marketing Channel, Marketing Materials or any related application, extension, feature or material to offer, display, distribute, transmit, route, provide connections to or store any content or any other material that infringes or promotes the violation of the Intellectual Property Rights, privacy or other rights of any person or entity.
4.9 Partner must comply with the Documentation, CodeFuel Guidelines Any deviation from the Documentation CodeFuel’s Guidelines or instructions must be approved in advance in writing by CodeFuel. Partner acknowledges and agrees that CodeFuel has the right to take any measures needed to prevent or correct any integration which does not comply with the aforementioned Documentation or CodeFuel’s Guidelines.
4.11 Partner will not, directly or indirectly, disclose any data collected in connection with the “service” to any third party or use such data for the benefit of any other party, including using such data for research and development, modeling, or providing services to any other party. Partner further agrees not to use any such data, directly or indirectly, for (i) device or cross-device identification, (ii) targeting, including retargeting segmenting, creating or supplementing user profiles or inventory profiles, creating, supplementing or amending interest categories, or syndication or other distribution to third parties, or (iii) sequencing. Partner will not, directly or indirectly, reverse engineer any such data that is masked, hashed, aggregated, or otherwise protected, including, without limitation, ad tags or scripts. Notwithstanding for foregoing, any data related to the use of the Partner Approved Marketing Chanel (excluding use of the CodeFuel Solution) shall be solely owned by Partner and Partner shall be entitled to use such data as it deems fit.
4.12 Partner hereby acknowledges that it is aware, and it will advise its employees and consultants, that CodeFuel is a publicly traded company, and as such, United States and Israeli securities laws prohibit any person who has received material, non-public information concerning CodeFuel from purchasing or selling securities of CodeFuel or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Partner read and agrees to the terms of CodeFuel’s Code of Business available at http://www.perion.com/wp-content/uploads/2014/06/Perion-Code-of-Conduct-3-12.pdf and agrees that the Partner, its employees and consultants will act in accordance therewith at all times during the Term of the Agreement.
4.13 Partner further undertakes that as CodeFuel is a publicly traded company, Partner will not, at any time, issue any press release and/or any public announcement relating to CodeFuel, the Agreement and/or the fact that the parties have engaged hereunder, without the prior written approval of CodeFuel. Partner further acknowledges and agrees that CodeFuel may be obliged, as part of certain disclosure rules, to disclose the existence of the engagement hereunder and its terms and conditions. Partner hereby waives any claim of any sort against CodeFuel for any such disclosure. Additionally, CodeFuel may issue press releases and/or public announcements relating to the Agreement and/or the fact that the parties have engaged hereunder, without the prior written approval of the Partner.
5.1 During the Term hereof, Partner may receive payment in accordance with the payment provisions set forth in an IO.
5.2 Failure to remit any payment of any nature when due which is cured within seven (7) days of the due date shall not be considered a breach of CodeFuel’s payment obligation hereunder. Partner agrees that CodeFuel shall not be liable for non-payment in connection with the Monetization Tools solely because they have been cleared from third party advertisers. If third party proceeds from a particular advertiser has not cleared to CodeFuel, other advertisers will not be prohibited from advertising on the CodeFuel Solution on the Partner Approved Marketing Channel due to such non-clearance if such other advertisers’ credit is not in question.
5.3 Partner hereby authorizes and appoints the person indicated in the IO under the “Partner Information” table included in the preamble of the IO, to exclusively act, in its name and on its behalf, to provide, amend and/or replace Partner’s Payment Information. Any update or modification of the Payment Information by the Authorized Signatory shall be deemed to be made by the Partner.
5.4 To reduce administrative costs, the parties agree that CodeFuel shall not be required to make any payment to Partner until such time that the payment owed to Partner equals or exceeds two hundred and fifty U.S. Dollars (US $250).
5.5 Each party shall be responsible for paying all of its respective applicable taxes, duties and other governmental charges imposed on it with respect to the Agreement and its performance hereunder. CodeFuel may withhold and deduct from any Payment any and all applicable taxes and charges required to be withheld according to any applicable law or regulation and the balance shall be deemed as full payment of such Payment. In addition, Partner acknowledges that payments by CodeFuel to Partner may be subject to further deductions for payment processing fees by correspondents and Partner’s own banking institution(s) which shall be fully borne by Partner.
5.6 CodeFuel shall have the right to withhold or offset against any payments due to Partner hereunder any amounts due by Partner to CodeFuel, including any amounts that CodeFuel may have previously paid to Partner in excess of amounts which were due to Partner. In addition, CodeFuel shall have the right to offset any money which CodeFuel owes to the Partner against any money owed by Partner to CodeFuel under the Agreement or any other agreement that the parties may have entered into with each other.
5.7 Partner will not be entitled to receive or retain, and CodeFuel may deduct or withhold, any amounts hereunder that resulted from any of Partner’s activities which are in breach of the Agreement.
5.8 Any other term in this Agreement notwithstanding, Partner will not be entitled to receive or retain, and CodeFuel may deduct or withhold, any amounts hereunder that resulted from any of Partner’s activities which are in breach of this Agreement. If the Monetization Source, in its sole judgement and discretion and at any point of time, deducts any proceeds in respect of Partner’s and/or Partner Approved Marketing Channel’s activity (whether retroactively or otherwise), CodeFuel shall be entitled to deduct the same from any payment due to Publisher, and such deduction shall not be considered a breach of this Agreement.
5.9 Without derogating from CodeFuel’s rights under this Agreement, if Partner engages in Prohibited Activity or Fraudulent Activity, is in breach of this Agreement or acts contrary to the Documentation or the CodeFuel Guidelines, then for a period of seven (7) days prior to the date of detection of such activity and up to and including the day in which such activity has ceased to CodeFuel’s satisfaction, CodeFuel shall have the right not to pay any compensation earned by the Publisher which relate to such activity during such period. CodeFuel will notify Partner of this detection by email. In addition, and without derogating from the foregoing, upon CodeFuel’s request, Partner shall reimburse CodeFuel all payments that were paid to it in relation to any such activity. The parties agree that the foregoing amounts are an agreed upon liquidated damage and not a penalty.
6. PROPRIETARY RIGHTS.
6.1 Each Party retains all right, title and interest in and to its respective technology, products, application, website(s) and services included under the scope of the Agreement, including any Intellectual Property Rights therein (collectively, the “Respective IP”) and any derivatives therefrom. The parties agree that the Documentation shall be the sole property of CodeFuel and can’t be shared without a written approval from CodeFuel. As between CodeFuel and Partner, any use of the Respective IP shall inure to the benefit of its respective owner, and neither party shall: (i) contest or challenge the validity of, the other party`s rights or interests in and to the Respective IP; or (ii) seek to register or record or claim any interest in the other party’s Respective IP.
6.2 Neither party shall have any right to remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on any materials provided by the other party.
7.1 During the Term, each party may have access to certain non-public proprietary, confidential and/or trade secret information of the other party, whether furnished before or after the Effective Date, and regardless of the manner in which it is furnished, (the “Confidential Information”). Confidential Information shall also include (i) the existence and terms of the Agreement; (ii) any implementation guidelines and documentations provided by CodeFuel or by CodeFuel’s Monetization Sources; and (iii) any information which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive to the disclosing party. The parties agree that any information or data relating to the CodeFuel Solution, including, without limitation, click-stream information, traffic sources, and size and placement data shall be the Confidential Information of CodeFuel. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its shareholders, directors, officers, corporate affiliates, employees, advisors or consultants (collectively, the “Representatives”) on a “need to know” basis only and provided that such Representatives are bound by an agreement with terms at least as restrictive as those terms contained herein and the receiving party remains responsible for a breach of the disclosing party’s Confidential Information by a Representative; (b) not to use any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under the Agreement; and (c) to keep the disclosing party’s Confidential Information confidential using the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, CodeFuel may disclose Partner’s Confidential Information solely to the extent required under its agreement with the Monetization Source.
7.2 Neither party shall be liable for disclosure of Confidential Information if made pursuant to applicable law or in response to a valid order of a court or authorized agency of government; provided that the receiving party provides the disclosing party with prompt written notice so that such party may seek relief from the body who demanded the disclosure or initiate any other steps to limit or avoid disclosure. In the event that relief is not obtained, receiving party will disclose only that portion of the disclosing party’s Confidential Information that its counsel advises is legally required to be disclosed and will work with disclosing party to minimize the extent and effects of such disclosure, all at the disclosing party’s expense.
7.3 Upon termination or expiration of the Agreement or upon the written request of the disclosing party at any time during the Term, receiving party shall promptly either: (i) return to the disclosing party all Confidential Information furnished to the receiving party by the disclosing party, without retaining any copies thereof, or (ii) destroy all Confidential Information furnished to the receiving party by the disclosing party, including soft copies and any writings or recordings whatsoever prepared by the receiving party or its Representatives based upon the disclosing party’s Confidential Information, and receiving party will furnish to disclosing party a certificate signed by an authorized officer of receiving party supervising such destruction and attesting under penalty of perjury that all Confidential Information has been permanently destroyed or permanently deleted, except to the extent a party is advised by counsel that such destruction is prohibited by law. Notwithstanding the foregoing, neither the receiving party nor any of its Representatives shall be obligated to return or destroy Confidential Information that has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures and made in the ordinary course of business; provided further that any such Confidential Information shall remain subject to the confidentiality provisions contained herein for so long as it is retained by the receiving party, irrespective of the Term of the Agreement.
7.4 The duty to protect Confidential Information shall expire three (3) years from the date of termination of the Agreement.
7.5 For purposes of the Agreement, Confidential Information shall not include any information that: (a) is, or subsequently becomes, publicly available without receiving party’s breach of any obligation owed to disclosing party; (b) became known to receiving party from a source other than disclosing party by means other than by a breach of an obligation of confidentiality owed to disclosing party; or (c) is independently developed by receiving party without the use of any of disclosing party’s Confidential Information. If a particular portion or aspect of the Confidential Information becomes subject to any of the foregoing exceptions, all other portions or aspects of such information shall remain subject to all of the provisions of the Agreement.
8. DATA COLLECTION.
8.2 Notwithstanding the foregoing, and as a condition to the lawful provision of the services, Partner hereby undertakes to comply with all applicable laws relating to the processing of End User Data, including (but not limited to), displaying all required notices to its end users, as well as obtaining end users consent for such processing, to the extent necessary. Partner shall defend, hold harmless and indemnify CodeFuel and its affiliates (including, without limitation, CodeFuel and its affiliates’ employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees arising and/or relating from Partner breach of its undertakings with respect to End User Data .
9. REPRESENTATIONS AND WARRANTIES.
9.1 Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it under the Agreement, (b) the execution of the Agreement and the performance thereof do not violate any other agreement to which it is a party, (c) the Agreement constitutes the legal, valid and binding obligation of such party, (d) any and all activities and obligations it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules and regulations, including, without limitation, privacy laws, rules and regulations, and (e) each party’s technology, software, products and services are wholly owned or validly and legally licensed for use by the respective party during the Term of the Agreement. Notwithstanding Sub-Section 9.1(d), CodeFuel does not represent or warrant that the CodeFuel Solution is or will be in compliance with the provision(s) of the Children’s Online Privacy Protection Act of 1998 (“COPPA”), and, therefore, any claim related to COPPA is excluded from any indemnification obligation of CodeFuel under this Agreement, including any indemnification obligation included under section 10.1.
9.2 The Partner represents and warrants that (a) it has the right and license to provide the Services via the Partner Approved Marketing Chanel for integration with the CodeFuel Solution as contemplated hereunder; and (b) the Services, Approved Marketing Materials and Partner Materials do not and will not: (i) contain or perform Prohibited Activity or Fraudulent Activity, or be used in connection with any Prohibited Activity or Fraudulent Activity, or otherwise breach any of Partner’s obligations hereunder; (ii) infringe, misappropriate or otherwise violate the Intellectual Property Rights of any person or entity; and (iii) incorporate any Publicly Available Software, in a manner that may subject the CodeFuel Solution, in whole or in part, to the license obligations of any Publicly Available Software. As used herein, the term “Publicly Available Software” means a software that is available under any license that requires as a condition of use, modification and/or distribution of such software, that it or other software combined and/or distributed with it shall be: (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge.
9.3 Partner acknowledges and agrees that the CodeFuel Solution and Documentation is provided by CodeFuel and third parties “AS-IS”. CodeFuel does not represent or warrant that: (i) the CodeFuel Solution, the Documentation or any of its products, services or software will be error free or that any errors will be corrected; (ii) the operation of the CodeFuel Solution or any of its products, services or software or access to the Documentation will be uninterrupted; or (iii) Partner will profit or derive any economic benefit from Partner’s use of the CodeFuel Solution or Documentation. Some states or jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply. Except as expressly provided in the Agreement and to the fullest extent allowable by law, CodeFuel makes no other warranty of any kind, whether express, implied, statutory or otherwise, including, without limitation, warranties of merchantability and fitness for a particular use or non-infringement.
9.4 Partner acknowledges that CodeFuel Solution may contain certain third-parties’ Publicly Available Software components which are governed by their respective licenses and not by the license granted under the Agreement. A list of the Publicly Available Software components and their respective licenses or copyright notice, which are incorporated by reference to the Agreement, is available in a “read me” file within the CodeFuel Technology and/or in the Documentation provided to Partner by CodeFuel and/or as otherwise provided by CodeFuel in writing to Partner. The license granted herein does not apply to any Publicly Available Software accompanying the CodeFuel Solution, and, except if otherwise expressly provided in the Agreement, CodeFuel hereby disclaims any and all liability to Partner with respect to the Publicly Available Software.
10.1 Except as expressly provided in the Agreement, each party (the “Indemnifying Party”) shall indemnify and defend the other party and/or its parent corporation, subsidiaries, affiliates, directors, officers, employees, agents, successors and permitted assigns (collectively, the “Indemnified Party”) from and against any and all claims, suits, actions, demands, proceedings and damages, losses, and expenses (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted, filed, brought or made by any third party against the Indemnified Party arising out of: (i) a breach of any warranty or representation made by the Indemnifying Party under the Agreement; and/or (ii) a claim that the Indemnifying Party’s technology, application or other materials, and in the case of the Partner, the Partner Materials and Services whether owned or licensed/provided by the Partner or by a third party, as the case may be, infringe any third party’s Intellectual Property Rights and/or any applicable privacy laws and regulations (collectively, “Claims”). Notwithstanding the foregoing, the Indemnifying Party shall not have any liability to the Indemnified Party pursuant to this Section for any Claim if based upon: (a) any use of the Indemnifying Party’s deliverable(s) for which it was not designed; or (b) a failure to promptly install an update provided by the Indemnifying Party where the installation of the update would have avoided a claim of infringement.
10.2 The Indemnified Party shall: (i) promptly notify the Indemnifying Party of any Claim provided that a failure to give prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Section unless such failure shall materially and adversely affect the Indemnifying Party’s ability to defend such Claim, (ii) provide the Indemnifying Party with reasonable information, assistance and cooperation in defending the Claim at Indemnifying Party’s cost, and (iii) give the Indemnifying Party full control and sole authority over the defense and settlement of such Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior written approval (which approval shall not be unreasonably withheld or delayed) and provided further that CodeFuel shall not be required to allow Partner to assume the control of the defense of a Claim to the extent that CodeFuel determines that (a) such claim relates to the CodeFuel Solution or any part thereof, (b) any relief other than monetary damages is sought against CodeFuel, (c) there may be a conflict of interest between the Partner and CodeFuel in the conduct of the defense, or (d) settlement of, or an adverse judgment with respect to, such Claim could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of CodeFuel. The Indemnified Party may join in the defense of such Claim with counsel of its choice at its own expense.
10.3 Provided that the Indemnified Party fulfills its obligations set forth in Section 10.2, the failure of the Indemnifying Party to comply with Section 10.1 above will entitle the Indemnified Party to act on behalf of the Indemnifying Party, at the expense of the Indemnifying Party.
10.4 The indemnification agreed upon in Section 10.1 is the sole and exclusive remedy for all Claims arising hereunder and the Indemnified Party will have no further remedies against the Indemnifying Party.
11. LIMITATION OF LIABILITY.
11.1 IN NO EVENT WILL EITHER PARTY, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR WITH RESPECT TO CODEFUEL, THE INSTALLATION OR USE OF, OR INABILITY TO USE, THE CODEFUEL SOLUTION UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCT LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT A PARTY HERETO WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
11.2 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNTS RECEIVED BY PARTNER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM IS MADE.
11.3 THE WAIVER OF DAMAGES IN SECTION 11.1 AND THE LIMITATION OF LIABILITY IN SECTION 11.2, SHALL NOT APPLY TO EITHER PARTY’S LIABILITY FOR BREACH OF ITS OBLIGATIONS UNDER SECTIONS 5.8 AND 5.9 (PAYMENT), 6 (PROPRIETARY RIGHTS), 7 (CONFIDENTIALITY) AND 10.1(II) (INDEMNIFICATION) 4.2 AND 4.9 (PARTNER COMPLIANCE WITH LAW) OR FOR FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
12. TERM AND TERMINATION
12.1 The Agreement shall commence on the Effective Date and shall continue in effect for a period of one (1) year or such other term specified in the IO (the “Initial Term”). The Agreement shall automatically renew thereafter for additional successive periods of one (1) year (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless suspended and/or terminated earlier in accordance with any of the following sections.
12.2 Either party may terminate the Agreement, for any reason and without liability, upon providing the other party with 24 hours prior written notice.
12.3 Notwithstanding anything to the contrary, CodeFuel may suspend and\or terminate the Agreement, immediately with or without notice to the Partner, if (i) the Partner is engaged in any Prohibited Activity or Fraudulent Activity; (ii) the Partner does not comply with CodeFuel’s guidelines and or the Monetization Source policies; or (iii) CodeFuel reasonably determines that it is commercially impractical for CodeFuel to continue providing the CodeFuel Solution under the terms of the Agreement as a result of legal, business or technical considerations. CodeFuel may also terminate the Agreement in accordance with Section 4.3 above.
12.4 Without derogating from CodeFuel’s right under Sections 4.3 and 12.3, either party may immediately terminate the Agreement: (i) if the other party has breached any of its representations, warranties or obligations set forth in the Agreement and failed to cure such breach within 24 hours from receipt of a written notice thereof; or (ii) by written notice to the other party, if such party becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency, administration or receivership proceeding or has any petition under bankruptcy, insolvency or administrative law filed against it, which petition is not dismissed within thirty (30) days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. A party that becomes subject to any of the events described in clause (ii) shall immediately notify the other party in writing.
12.5 During the period of suspension for any reason all rights and licenses to use, promote, run campaigns that utilize any of the CodeFuel Solution(s) granted to Partner herein shall immediately be suspended.
12.6 Upon the termination of the Agreement for any reason: (i) all rights and licenses to use, promote, run campaigns that utilize any of the CodeFuel Solution and Documentation granted to Partner herein shall immediately be terminated; and (ii) other than any deductions owed under Section 5.8 above, each party shall be entitled to receive all payments due to the other party according to the Agreement accruing prior to the date of termination of the Agreement. Following such final payment, neither party will be entitled to receive any payment from the other party under Section 5 hereof, provided, however, that in the event that CodeFuel has terminated the Agreement in accordance with Sections 12.3(i)-(ii) or 12.4(i), Partner will not be eligible to receive any amounts hereunder that resulted from any of its activities which caused such termination.
12.7 Neither party shall be liable to the other for any damages resulting solely from suspension and/or termination of the Agreement as permitted herein. The suspension and/or termination of the Agreement, in whole or in part, shall not limit either party from pursuing other remedies available to it.
13.1 Entire Agreement; Amendments. The Agreement, including any Appendices attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreements or understandings, whether written or oral, with respect to the subject matter hereof. Unless specifically noted otherwise herein, any amendments or modifications to the Agreement must be in writing and executed by an authorized representative of each party.
13.2 Non-waiver and Survival. The failure to require performance of any provision of the Agreement 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 or a waiver on another occasion. The following Sections of the Agreement will survive any termination of the Agreement: 5, 6, 7.1-7.7, 10, 11, 12.6, 12.7 and 13.
13.3 Force Majeure. Neither party shall be liable for failure to perform its obligations or perform 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 or Internet disturbances.
13.4 Assignment and Delegation. Neither the Agreement nor any interest herein may be assigned by Partner nor any obligations or performance of Partner delegated without the prior written consent of CodeFuel. Any attempted unauthorized assignment or delegation shall be null and void. Upon providing written notice to the Partner, CodeFuel may assign the Agreement or any rights herein or delegate any obligations of CodeFuel hereunder. CodeFuel will be released of all rights or liabilities under the Agreement upon consummation of such assignment or delegation.
13.5 No Third Party Beneficiaries. Unless specifically noted otherwise herein, the Agreement is not made for the benefit of any third party and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under or by reason of the Agreement.
13.6 Severability. If any provision of the Agreement is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise contrary to law, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions shall remain in full force and effect.
13.7 Jurisdiction. Each party shall comply with all laws, rules and regulations, applicable to it in connection with the performance of its obligations under the Agreement. The laws of the State of New York and applicable U.S. federal laws, excluding any conflict of law rules, shall govern the Agreement. The parties specifically exclude the application of 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. Each of the parties consents to the jurisdiction and venue of any such court and waives any argument that any such court does not have jurisdiction over such party or such dispute or that venue in any such forum is not appropriate or convenient.
13.8 Independent Contractors. The parties hereto are and shall remain independent contractors and nothing herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other nor shall either party have any right or authority to create any obligation on behalf of the other party.
13.9 Notices. All notices and other communications required or permitted under the Agreement shall be in English and in writing and shall be deemed given (i) upon receipt when delivered personally, (ii) upon confirmation of receipt when sent via facsimile or e-mail, (iii) within one (1) business day of being sent by overnight courier, or (iv) within five (5) business days of being sent by registered or certified mail (postage prepaid). All such notices, and other communications will be addressed to a party at each party’s address set forth in the preamble to the Agreement, or pursuant to such other instructions as may be designated in writing by the party to receive such notice in accordance with this section. The e-mail address provided by Partner within its control panel shall be regarded as Partner’s email address for delivery of written notices hereunder.
13.10 Counterparts; Facsimile. The Agreement may be executed in one or more counterparts, each of which shall be deemed to constitute an original copy hereof and all of which, when taken together, shall be deemed to constitute one and the same Agreement. The exchange of an executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format or other comparable format shall be sufficient to bind the parties as original signatures.
FRAUDULENT ACTIVITY AND PROHIBITED ACTIVITY