TERMS AND CONDITIONS

1.        Scope of the Agreement

1.1.     Subject to the terms and conditions of this Agreement, Company hereby appoints Distributor as an authorized distributor of the Company’s products (the “App”) during the term hereof, for purposes of marketing, promotion and distribution of the App to publishers and end users (collectively, the “Users”).  

1.2.    Distributor represents and warrants that it shall not offer to the Users any services or applications similar or identical to the Company’s service and App during the term of this Agreement, and for a period of one year thereafter.   

1.3.    Distributor acknowledges and agrees that Company has sole control and discretion of all aspects of the App, including advertisers, payment structures, and other monetization arrangements with respect to the App.

2.        License Grant

2.1.    Subject to the terms and conditions of this Agreement, Company hereby grants to Distributor, a revocable, non-exclusive, worldwide, non-sub licensable, to distribute, display, transmit and access the App solely in connection with the distribution and promotion of the App (the “License”). 

2.2.   During the Term of the Agreement (specified in section ‎9 below), Except as expressly permitted in this Agreement, Distributor shall not: (i) reproduce, decompile, modify, reverse engineer, disassemble or otherwise attempt to derive the source code of the App or prepare any derivative works of the App; (ii) remove, replace, obscure, or alter any of Company’s copyright notices, marks or proprietary indicia, display advertising components, search components or any other owned or used components affixed to or contained within the App. Distributor acknowledges that any and all goodwill and other proprietary rights that are created by or that result from its use of the App as permitted hereunder will inure solely to the benefit of the Company.

3.        Representations of the Parties

3.1.    Distributor represents and warrants that its use of the App does not and will not: (a) violate any applicable law, regulation or order of any court or tribunal; (b) adversely affect public or private infrastructure or equipment; (c) violate, misappropriate, or infringe any Company or third party intellectual property right, rights of privacy and publicity, or other proprietary, moral or legal rights (e.g. video rights, photography or image rights, third party data rights, etc. for content and materials that may be included in the App); (d) create any breach or loophole through which illegal or fraudulent activity may be initiated and does constitute or contribute to the dissemination of any spyware, a virus, or trojan horse and/or criminal activity; (e) collect or store personal data about the end users or other third parties without their consent; (f) violate any provisions of the CAN-SPAM Act.

3.2.   Distributor represents and warrants that all distribution methods, channels, products used to distribute the App, whether operated by itself or through third parties on his behalf, are fully compatible with Microsoft Compliance Guidelines.

3.3.   Distributor represents and warrants that all distribution methods, channels or products used to distribute the App does not and will not contain: (a) illegal, abusive, pornographic, obscene, harmful, threatening, harassing, excessively profane, discriminatory, offensive or deceptive material or content; (b) hateful, defamatory, libelous content and/or materials; (c) content and/or materials related to gambling or gambling activity. 

4.        Ownership

4.1.    Distributor acknowledges that Company retains all right, title and interest in and to the App including all improvements, modifications or derivative works thereof and all intellectual property rights therein (including without limitation, marks and any other indicia).  Distributor will not acquire any right, title, or interest in nor to the Distributor’s intellectual property rights except for the limited licenses to use the App and marks as provided under this Agreement. 

5.        Payment and Reports

5.1.    In consideration for the distribution of the App in accordance with this Agreement, Company shall pay Distributor the fees as set forth in Exhibit A attached hereto (the “Fees”).

5.2.   Any payment due hereunder shall be made within the period described in Exhibit A hereto, provided however, that failure to remit any payment of any nature when due that is cured within five (5) days of the due date shall not be considered a breach of Company’s payment obligation hereunder. All payments shall be made in U.S. dollars by electronic funds transfer to an account designated by Distributor and which details are attached hereto as Exhibit B (the “Payment Information”). To reduce administrative costs, the parties agree that Company shall not be required to make any payment hereunder to Distributor until such time that the amount owed to Distributor equals or exceeds one hundred U.S. dollars (US$100). Distributor will issue invoices to Company with respect to the applicable payment due to it.

5.3.   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 and its performance hereunder, including, without limitation, VAT and taxes arising from such party’s income in accordance to all applicable laws.

5.4.   Company shall provide Distributor with reports that shall include, at a minimum, total revenue earned by Distributor from the App during the applicable period of the report. Company shall provide the reports at the end of each calendar month during the Term. The reports shall be provided in Excel\CSV format and the revenues shall be presented in U.S. dollars.

6.        Confidentiality

6.1.    For purposes of this Agreement, “Confidential Information” means any data or information that is proprietary to the Disclosing Party and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to: (i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such party, its affiliates, subsidiaries and affiliated companies; (ii) plans for products or services, and customer or supplier lists; (iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; (iv) any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and (v) any other information that should reasonably be recognized as confidential information of the Disclosing Party. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. The Receiving Party acknowledges that the Confidential Information is proprietary to the Disclosing Party, has been developed and obtained through great efforts by the Disclosing Party and that Disclosing Party regards all of its Confidential Information as trade secrets.

6.2.   From time to time, the Disclosing Party may disclose Confidential Information to the Receiving Party. The Receiving Party will: (a) limit disclosure of any Confidential Information to its directors, officers, employees, agents or representatives (collectively “Representatives”) who have a need to know such Confidential Information in connection with the current or contemplated business relationship between the parties to which this Agreement relates, and only for that purpose; (b) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement and require such Representatives to keep the Confidential Information confidential; (c) shall keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose any Confidential Information received by it to any third parties (except as otherwise provided for herein).

The Receiving Party agrees to use the Confidential Information solely in connection with the current or contemplated business relationship between the parties and not for any purpose other than as authorized by this Agreement without the prior written consent of an authorized representative of the Disclosing Party. No other right or license, whether expressed or implied, in the Confidential Information is granted to the Receiving Party hereunder. Title to the Confidential Information will remain solely in the Disclosing Party. All use of Confidential Information by the Receiving Party shall be for the benefit of the Disclosing Party and any modifications and improvements thereof by the Receiving Party shall be the sole property of the Disclosing Party.

6.3.   The Receiving Party shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. 

6.4.   Neither Party shall use the Confidential Information, or allow any person or third party under its control or on its behalf, to reproduce, decompile, modify, reverse engineer, disassemble or otherwise attempt to derive the source code of the other Party’s Confidential Information or prepare any derivative works thereof.

6.5.   The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to (without derogating from any other rights or remedies) obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.

6.6.  Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information: (a) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or (b) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or (c) Is approved for release (and only to the extent so approved) by the disclosing Party; or (d) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.

7.        Disclaimer of Warranties

Except as expressly provided in this Agreement, the Parties provide their respective services on an “as-is” basis. Except as expressly provided in this Agreement, Company 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 arising in the course of or connected to the performance hereunder. Company makes no warranties or representations about the accuracy or completeness of the Company service or that the Company service will be uninterrupted, timely, secure, or error free or that defects in the operation or functionality of the App provided to Distributor as part of the Company service will be corrected.

8.        Limitation of Liability

Under no circumstances will Company, its officers, directors, employees or agents be liable to Distributor or any third party under any contract, strict liability, negligence or other legal or equitable theory, for any 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 this Agreement or with respect to Company, the Company App and/or Company technology, the Company service or use of, or inability to use the Company App under any theory of liability, including but not limited to contract or tort (including products 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 essential purpose of any limited remedy stated herein. In no event shall Company’s total aggregate liability to the Distributor or anyone on its behalf, for any claim arising out of or relating to this Agreement, to the fullest extent possible under applicable law, exceed the amounts received by Company under this Agreement during three (3) months immediately preceding the date on which such claim arises.

The limitations of liability contained in this section 8 shall not limit either party’s liability for breaches of its obligations under sections 3, 5 or 6 hereof or for fraud, gross negligence or willful misconduct. Additionally, the aforementioned limitations shall not preclude an action for recovery of amounts payable by one party to the other pursuant to the payment terms of this Agreement.

9. Term and Termination

9.1.    This Agreement shall commence on the Effective Date and shall continue in effect for a period of one (1) year (the “Initial Term”) and shall automatically thereafter renew for additional successive (1) one year periods (together with the Initial Term, the “Term”), unless terminated earlier in accordance with the terms of sections 9.2 or 9.3 herein below.

9.2.   This Agreement may be terminated by either party according to the following: (a) for any reason and without liability, upon providing the other party with thirty (30) days’ prior written notice; (b) in the event that the other party has breached or breaches any of its obligations, representations or warranties herein contained and does not cure such breach(es) within ten (10) days of receipt of a written notice describing such failure; (c) 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 or receivership proceeding, or has any petition under bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing, or has a trustee, administrator or receiver appointed for its business or assets or any part thereof; or

9.3.   Upon any termination of this Agreement: (a) all licenses granted herein shall be deemed immediately terminated and Distributor shall immediately cease offering and distributing the App; (b) each party shall return to the other party any Confidential Information of the other party then in its possession and shall certify in writing to the other party that all copies and partial copies of such Confidential Information have been either returned to the other party or otherwise erased or destroyed and certified in writing by an authorized officer supervising such destruction; and (c) Company shall remit all payments due to Distributor according to this Agreement until the actual date of termination of this Agreement.

10.     General

10.1.  This Agreement shall be construed and governed by the law of the state of Israel. Any dispute arising from the terms of this agreement shall be subject to the exclusive jurisdiction of the competent courts in the District of Tel Aviv, Israel.

10.2.Neither party shall be liable for failing or delaying performance of its obligations resulting from 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.

10.3.This Agreement may not be assigned by either party without the prior written consent of the other party, except that either party may assign any of its rights and obligations under this Agreement, without consent of the other party, in connection with any merger, consolidation, change of control or sale of all or substantially all of its assets, provided that the other party’s rights according to this agreement shall not beharmed, and provided that as soon as commercially possible following the occurrence of such an event, the assigning party shall provide the other party with a written notice. Any unauthorized assignment or transfer shall be null and void. All of the terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the respective successors.

10.4.In addition to the rights and obligations which survive as expressly provided for elsewhere in this Agreement, the sections which by their nature would be reasonably expected to survive, shall survive and continue after any termination of this Agreement, and specifically sections 1, 6 and 8 shall survive and be enforceable after such termination.

10.5.All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been 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 (postage prepaid). All such notices, and other communications will be addressed to the parties at each party’s address set forth in the cover page of this 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.

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