PLEASE READ THE TERMS AND CONDITIONS OF THIS PUBLISHER AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SPOT.IM SERVICE. BY CLICKING "I AGREE" OR "CHECKING THE AGREE TO TERMS" BOX OR BY USING THE SERVICE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS OF THIS PUBLISHER AGREEMENT. THIS PUBLISHER AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SERVICE, BETWEEN YOU ("PUBLISHER") AND ("SPOT.IM"). IF YOU DO NOT AGREE TO THIS AGREEMENT DO NOT INSTALL AND/OR USE THE SERVICE IN ANY MANNER WHATSOEVER.
WHEREAS Spot.IM is the owner of proprietary technology which allows the Publisher to enable and moderate its users participation and engagement through a comments plugin (the "Platform"), embedded and displayed on websites through Spot.IM’s application program interface ("Linking API"), and to insert and display on the website advertising content (including videos, images, graphics, animations, sounds, text and music) ("Advertisements") through the Platform (collectively, the "Service"); WHEREAS Publisher wishes to use the Service on the Publisher website(s) and applications as approved by Spot.IM (the "Publisher Properties"); and WHEREAS the parties wish to establish the terms under which Publisher shall use and access the Service on the Publisher Properties;
NOW, THEREFORE, the parties hereby agree as follows:
Intellectual Property Rights & Restrictions
All intellectual property rights in the Service and any part thereof (including the Platform and Linking API), including any and all derivatives, changes and improvements thereof (the "Spot.IM Technology") lie exclusively with Spot.IM. Publisher shall not, and shall not let any third party; (i) attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Spot.IM Technology or any part thereof for any purpose; (ii) represent that it possesses any proprietary interest in the Spot.IM Technology or any part thereof; (iii) directly or indirectly, take any action to contest Spot.IM Technology's intellectual property rights or infringe them in any way; (iv) except as specifically permitted hereunder, use the name, trademarks, trade-names, and logos of Spot.IM. All intellectual property rights in the Publisher Properties lie exclusively with Publisher or its licensors.
Publisher's Undertakings and Warranties
Use of Spot.IM Service. During the Term, Publisher shall display the Service on the comments section in the article pages of all desktop, mobile optimized, tablet and application on the Publisher Properties, which shall be maintained in the location and in conjunction with the same elements specified and shown in Appendix A. Publisher will not deploy the Service on any website that displays adult, obscene, pornographic, defamatory, libelous, infringing, abusive, or illegal content, that promotes hate or discrimination, facilitates the sale of firearms or illegal drugs, or that participates or encourages participation in, illegal activities ("Prohibited Content"). The Service allows users to post content ("User Content"), and any such User Content posted on Publisher Properties is owned by Publisher or the users, as applicable, and Spot.IM has a limited right to use such User Content for the purpose of providing the Service. Publisher shall not allow and shall not encourage the posting of any User Content which may be deemed Prohibited Content or any content which infringes intellectual property rights, publicity rights, privacy rights or any other third party rights.
Spot.IM warrants and represents that: (i) the Service will be performed in a professional manner, and with due care, skill and diligence; (ii) to the best of Spot.IM’s knowledge the Service does not infringe any patent, copyright, trademark, trade secret or other intellectual property right of any third party; (iii) the Service does not contain any viruses, worms, Trojan horses or other harmful or destructive code or content.
Advertisement Revenue. Spot.IM shall pay the Publisher 50% of the Revenues generated by Spot.IM from Advertisements inserted through the Service on the Publisher Properties. If Publisher inserts Advertisements through the Service on the Publisher Properties, Publisher shall pay Spot.IM 50% of the Revenues generated by Publisher from such Advertisements (in each case the "Revenue Share").
The "Revenue" means the net revenue generated by either party from Advertisements which were inserted by either party and displayed through use of the Service on the Publisher Properties less the total amount of credit card processing fees, bad debt, charge-backs, deductions, reversals, or credits and refunds to third parties which provided the Advertisements.
Payment Terms. Each party shall pay to the other party the respective Revenue Share in accordance with Section 5.1, on a monthly basis within 60 days of the end of such month with respect to Revenue generated in the previous month, provided such Revenue Share is equal to no less than US$200. If the Revenue Share is equal to less than US$200, such amounts shall be accrued and deferred until such month in which the Revenue Share is equal to or exceeds US$200. Payments shall be made in US dollars by wire transfer to the Spot.IM’s designated account.
Taxes. All amounts payable under this Agreement are exclusive of any taxes (including, without limitations, sales tax, VAT, and similar taxes to the extent applicable).
Costs. Except as expressly provided in this Agreement, each party shall bear its own costs and expenses incurred in rendering performance of this Agreement.
During the Term of this Agreement, Spot.IM will provide Publisher with technical support for the Service during Spot.IM's normal working hours (Sunday– Thursday, 9:00 – 18:00 +2 GMT (Jerusalem)).
During the term hereof, each party may have access to certain non-public proprietary, confidential and/or trade secret information or data of the other party, whether furnished before or after the Effective Date, and regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the "Confidential Information"). Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of the receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of or reference to the Confidential Information. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its directors, officers, employees, advisors or consultants (collectively, the "Representatives") on a strict "need to know" basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event be no less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief. The parties' obligations with respect to Confidential Information shall expire five years from the date of termination or expiration of this Agreement, unless a longer period of protection applies under applicable law, either as trade secret information or otherwise. For avoidance of doubt, the Service and all designs, engineering details, and other technical, financial, marketing, commercial and other information pertaining to the Service shall be considered Confidential Information of Spot.IM.
Disclaimer of Warranties
EXCEPT FOR THE WARRANTIES PROVIDED IN THIS AGREEMENT, SPOT.IM PROVIDES THE USAGE OF THE SERVICE TO PUBLISHER ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE OR ACCURACY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SPOT.IM DOES NOT WARRANT THAT THE SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION AND SPOT.IM DOES NOT PROVIDE ANY WARRANTY WITH RESPECT TO CONTENT, INCLUDING ADVERTISEMENTS, PROVIDED THROUGH THE SERVICE. SPOT.IM DOES NOT ASSUME ANY LIABILITY OR RESPONSIBILITY FOR USER CONTENT OR FOR ANY THIRD PARTY CONDUCT, INCLUDING FOR ANY PROHIBITED CONTENT OR CONTENT THAT IS OTHERWISE OFFENSIVE, INDECENT, OBJECTIONABLE OR DEFAMATORY.
Limitation of Liability
EXCEPT FOR WILLFUL MISCONDUCT, SPOT.IM’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF THE REVENUE SHARE PAID BY SPOT.IM TO PUBLISHER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL SPOT.IM BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SPOT.IM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Term and Termination
Except for payment obligations under this Agreement, neither party shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
Governing law; Jurisdiction
This Agreement is governed by and construed exclusively in accordance with the laws of the State of New York, without regard to the principles of conflict of laws. Any and all disputes and controversies arising out of or in connection with the Agreement shall be brought exclusively before the federal or state courts in New York County.
Spot.IM may issue a press release, case study, or general marketing communications concerning its involvement with Publisher, including mentioning Publisher as a client on Spot.IM's website and using Publisher's trademark for this purpose.