BY FILLING IN YOUR DETAILS ANDOR BY CLICKING “I AGREE” YOU ARE AGREEING TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT.
This LICENSE AND SERVICES AGREEMENT FOR PUBLISHERS (the “Agreement“) is entered into by and between INNERACTIVE Ltd., an Israeli corporation with offices located at 17 Hamiflasim St. 4951447, P. O. BOX 3102 (“Inneractive“) and the publisher whose details are listed in the table below (the “Publisher“):
WHEREAS, Inneractive has developed certain proprietary technology, know-how and systems enabling the inclusion and optimization of advertisements into mobile content using personalization rules (the “Technology“), and owns certain trademarks and associated goodwill (the “Inneractive Marks“); and
WHEREAS, Publisher has developed, and is the owner and distributor of certain mobile apps (the “Content“); and
WHEREAS the parties wish to enter into this Agreement which will allow Inneractive to optimize, serve and place certain advertisements (“Advertising”) from private third party advertisers (“Advertisers”) onto the Content, using the Technology licensed to Publisher, during the Term (as defined);
NOW THEREFORE, in consideration of the premises and the undertakings of the parties herein contained, it is agreed as follows
- GRANT OF Non-Exclusive License; Restrictions. (i) Subject to the terms and conditions of this Agreement, Inneractive hereby grants the Publisher a non-transferable, non-exclusive license to deploy and use the Technology as part of the Services. For the absence of doubt, Publisher is permitted to make use of the Technology only for the purposes set forth in this Agreement, and may only make use of the Technology solely for the exclusive Advertising served to and placed on the Content by Inneractive. (ii) Publisher shall not, and shall not allow any third party to, and shall not permit or authorize others to : (a) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Technology by any means whatsoever; (b) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the Technology to or for the benefit of third parties, except as specifically licensed hereunder; (c) remove the Inneractive Marks, or any identification, or proprietary or copyright restrictions from the Technology; (d) copy, modify, incorporate into or with other Technology, or create a derivative work of any part of the Technology; (e) use similar processes and functions to develop competing products or to maintain interoperability between products, or any part thereof; or (f) develop methods to enable unauthorized parties to use the Technology.
- PUBLISHER RESPONSIBILITIES AND UNDERTAKINGS. (i) Publisher shall be responsible for any quality assurance (QA) testing all on its own expense, not including the Advertising QA. (ii) Upon execution of this Agreement, the Publisher’s technical point of contact listed at the start of this Agreement will commence work on the integration of the Services within the Content as per directions provided by Inneractive. (iii) Publisher shall use commercially reasonable efforts to provide even and consistent distribution of Advertising on the Content and shall immediately inform Inneractive of any Publisher action that will increase or reduce expected advertising inventory on the Content. (iv) Publisher shall not alter, modify or otherwise interfere with the operation of any of the Advertising or any link contained within any click-through Advertisement. Publisher shall promptly notify Inneractive if Publisher suspects that any third party may be tampering with, abusing or manipulating the Technology or the Advertising on the Content. In the event of misuse and/or abuse of Technology or Advertising by Publisher, Publisher shall not be entitled to any revenue associated with the applicable campaign(s). Publisher acknowledges and agrees that Inneractive shall, in its sole discretion, regularly review impressions, click-throughs or other actions with respect to Advertising. No revenue share will become due to Publisher for actions that Inneractive determines, in its sole discretion, are fraudulent or otherwise improper. In addition, Inneractive reserves the right to terminate this Agreement immediately, without giving Publisher an opportunity to cure, if Inneractive reasonably determines that Publisher has in any way manipulated or used artificial means to increase impressions, click-throughs or other actions, or has encouraged or authorized others to do so.
- REVENUE SHARE AND PAYMENT.
- During the Term of this Agreement, unless agreed otherwise, Inneractive shall be entitled to retain thirty five percent (35%) of all Net Revenues actually collected by Inneractive in connection with the Services. Inneractive shall deliver to Publisher the remaining sixty five percent (65%) of such Net Revenues within sixty (60) days from the date it receives the relevant Net Revenues from the Advertiser. The term “Net Revenue” shall mean actual collections from Advertisers made by Inneractive after taxes, rebates, refunds, charge-backs, costs, make-goods and/or other set-offs of any kind, if any.
- Inneractive shall be responsible for all invoicing, billings and collections from Advertisers.
- Each party shall bear its own expenses (including but not limited to any tax obligations) relating to the activities and payments received under this Agreement. All sums payable under this Agreement are exclusive of any applicable tax. Notwithstanding the foregoing, if the total amount payable under this Section 4 is less than two hundred USD ($200), Inneractive shall have the right to withhold payment until the next regularly scheduled payment date on which the amount payable to Publisher equals or exceeds two hundred USD ($200).
- Inneractive shall have no obligation to pay Publisher any payments earned through invalid, illegal or improper activity or any payments for revenue not yet received from relevant third parties (including Advertisers). It is hereby clarified that any calculation of Net Revenues will be made based on Inneractive’s reporting system and statistics calculated through its tracking pixels. Publisher acknowledges and agrees that the Net Revenue amounts are based solely on Inneractive’s final reported numbers.
- INTELLECTUAL PROPERTY; OWNERSHIP. (i) All rights, title and interest of either party in its respective products, services, and intellectual property shall be held by such party and noting in the license granted herein shall be considered a waiver of either party’s relevant intellectual property rights. Except as specifically set forth in this Agreement, neither party is granted any right or interest or license to the intellectual property, know-how, trademarks, marks or trade names of the other party. (ii) For avoidance of all doubts, Inneractive is the owner of and shall retain all rights, title and interest in and to the Inneractive Marks and Technology, including without limitation all related software, source and object codes, modifications, updates and enhancements. Publisher shall not use the Inneractive Marks and Technology, except pursuant to the limited rights expressly granted and as specifically set forth in this Agreement. Inneractive shall have the right to use Publisher’s name, logo and related trademarks on its website, presentations and other marketing collateral. Publisher agrees to participate in Inneractive case studies as may be requested from time to time
- TERM. This Agreement shall commence upon the Effective Date and continue until otherwise terminated as provided for herein (the “Term“).
- Either party may terminate this Agreement for convenience upon 60 days prior written notice to the other party. Alternatively, either party may terminate this Agreement immediately (i) for material breach of the other party provided that prior to termination it notifies the other party of its alleged breach and allows it a thirty (30) cure period, other than in instances where a cure period is irrelevant under the circumstances or (ii) if the other party becomes the subject of a voluntary or involuntary proceeding concerning insolvency, receivership, liquidation, or composition for the benefit of creditors. Any and all provisions or obligations contained in this Agreement which by their nature or effect are required or intended to be observed or performed after termination of this Agreement will survive the expiration or termination of this Agreement and remain binding upon and for the benefit of the parties, their successors and permitted assigns
- THE CONTENT. Publisher is and shall be solely and exclusively responsible for the Content. Publisher acknowledges and understands that Inneractive is under no obligation or requirement to review or approve the Content. Publisher expressly agrees and warrants that the Content shall not and does not: (a) infringe upon third party rights, (b) include content which is defamatory, libelous, abusive, or obscene, including, without limitation, include material which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law, (b) contain pornographic, violent or seditious information, (c) promote legal or illegal drugs that are not publicly attainable, (d) contain viruses or similar programs that might harm data or computer systems, or (e) is otherwise inappropriate or unlawful.
- Publisher shall indemnify and hold harmless Inneractive, its shareholders, directors and employees, from and against any and all loss cost, liability or expense (including, without limitation, reasonable attorneys’ fees) which Inneractive, its shareholders, directors and employees may suffer, incur or sustain resulting from or arising out of any and all claims brought by a third party to the extent such claims are related to the Content, including Publisher’s undertakings hereunder. In the event of a threatened claim, Inneractive will (1) promptly notify Publisher of such claim, (2) allow Publisher to control the defense thereof and/or all related settlement negotiations in cooperation with Inneractive, or (3) reasonably cooperate with Publisher, at Publisher’s expense, in such defense and/or settlement. Notwithstanding the aforesaid, Inneractive shall be entitled to appoint legal counsel on its behalf to monitor the defense and assist the legal counsel appointed by Publisher.
- Each party agrees that all business, technical and financial information it obtains from the other party is the confidential property of the disclosing party (“Proprietary Information” of the disclosing party). Except as expressly allowed herein, the receiving party will hold in confidence and not use or disclose any Proprietary Information of the disclosing party. The receiving party shall not be obligated under this Section with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without access to such Proprietary Information.
- LIMITED LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR (I) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR (II) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE TECHNOLOGY AND SERVICES PROVIDED HEREUNDER by Inneractive ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY ADVERTISING. INNERACTIVE’S TOTAL AGGREGATE LIABILITY TO PUBLISHER FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT IS LIMITED TO THE NET AMOUNT PAID TO PUBLISHER BY INNERACTIVE IN THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
- (i) The relationship between the parties is that of independent contractors and no employer-employee relations are established between them. Neither party is an agent for the other, nor does neither party have any authority to make any contract, whether expressly or by implication, in the name of the other party, without that party’s prior written consent for express purposes connected with the performance of this Agreement. No joint venture or partnership (in the strict legal sense) is created or intended by this Agreement; (ii) Inneractive shall have the right to mention the Content and the Publisher’s name for any marketing purposes; (iii) This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof; (iv) This Agreement may not be assigned by either party without the prior written approval of the other party other than in connection with merger of either party or sale by either party of all or substantially all of its shares or assets. (v) This Agreement may not be modified or amended except by a written agreement signed by the parties hereto; (vi) This Agreement shall for all purposes be governed by and construed in accordance with the laws of Israel (without reference to its conflict of laws principles) and the competent courts of Tel Aviv shall have exclusive jurisdiction over any dispute hereunder.