Spot.IM - Website Owner Agreement Last Revised: March 7, 2016

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:

  1. Service

    1. Subject to the terms and conditions of this Agreement, Spot.IM hereby grants Publisher the non-exclusive, non-transferable, non-sublicensable, limited right to: (i) embed the Linking API on the Publisher Properties; (ii) access and use the Service on the Publisher Properties; and (iii) display and publish Advertisements, as provided by Spot.IM, through the use of the Platform on the Publisher Properties. Publisher acknowledges and agrees that each use of the Spot.IM Service on the Publisher Properties will include an attribution to Spot.IM in a form and manner as provided by Spot.IM, which will include at a minimum Spot.IM brand name and logo and a link to Spot.IM's terms and privacy policy. Publisher acknowledges and agrees that Spot.IM Service will be implemented on Publisher Properties independently of any other third party service. The inclusion or display of Spot.IM Services with any other third party service by Publisher, including by implementation of Spot.IM Services in a third party service provider's iFrame or code is a breach of this Agreement and a violation of Spot.IM's intellectual property rights.

    2. Publisher shall permit Spot.IM to utilise information provided to it by the Linking API in order to provide personalized content to users of the Publisher Properties, which may include other content which appears on the Publisher Properties and Advertisements. Publisher acknowledges that users of the Service may elect to register for Spot.IM through the Service, and that such registration may result in collection and use of personally identifiable information and all information submitted by the user upon registration on Publisher Properties will be provided to Publisher. All collection and use of any such information will be conducted in accordance with Spot.IM's privacy policy available at https://www.spot.im/disclaimer/privacy/index.html.

  2. 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.

  3. Publisher's Undertakings and Warranties

    1. 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.

    2. Warranty. Publisher hereby warrants, represents and covenants that: (i) the Publisher Properties, content provided on the Publisher Properties and the products and services offered by Publisher do not infringe upon any third party's rights, including but not limited to intellectual property rights, privacy rights and publicity rights; (ii) Publisher has fully complied with any third-party licenses, permits and authorizations required in connection with such Publisher Properties; (iii) the Publisher Properties does not contain any viruses, worms, Trojan horses or other harmful or destructive code or content; (iv) the Publisher Properties does not install any hidden components or bundle any additional software and (v) the Publisher will comply with all applicable laws in its performance of this Agreement (including, without limitation, posting a legally adequate privacy policy and where applicable, posting and obtaining consent to a cookie policy, that explains how data is collected and used in connection with the Publisher Properties).

  4. Spot.IM Warranties
    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.

  5. Consideration

    1. 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.

    2. 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.

    3. 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).

    4. Costs. Except as expressly provided in this Agreement, each party shall bear its own costs and expenses incurred in rendering performance of this Agreement.

  6. Technical Support
    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)).

  7. Confidentiality
    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.

  8. 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.

  9. Indemnification

    1. Publisher's Indemnities. Publisher shall defend, indemnify and hold harmless Spot.IM, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) the Publisher Properties; (b) Publisher's violation of any applicable laws.
    2. Spot.IM's Indemnities. Spot.IM shall defend, indemnify and hold Publisher harmless, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) pursuant to a third party claim arising out of an allegation that the Service infringes any intellectual property right of a third party. The foregoing indemnification shall not apply with respect to any claims relating to: (i) any modification made to the Service by anyone other than Spot.IM; and (ii) use of the Service with any service or software not provided or authorized in writing by Spot.IM.
    3. Indemnification Procedure. The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such claim; (b) sole control over the defense and settlement of such claim; and (c) information as may be reasonably requested by the indemnifying party.

  10. 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.

  11. Term and Termination

    1. This Agreement shall commence on the Effective Date and shall remain in effect for an initial period of one year ("Initial Term"); thereafter, this Agreement will be automatically renewed for successive one year periods (the "Initial Term" and each "Renewal Term" thereafter shall be referred to collectively as the "Term"), subject to Publisher's payment of the Fees prior to the Renewal Term.
    2. Either party may terminate this Agreement by providing no less than 30 days prior to the expiry of the applicable Initial Term or Renewal Term, such termination to come into effect at the expiry of such Initial Term or Renewal Term. Either party may terminate this Agreement by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within seven days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. Upon termination or expiration of this Agreement for any reason whatsoever, Publisher will immediately cease use of the Service and each party shall return to the other party all of the other party's Confidential Information then in its possession. Sections 2, 7, 9, 10, 11.2, 13, and 16 shall survive any expiration or termination of this Agreement.

  12. Force Majeure
    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.

  13. 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.

  14. Publicity
    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.

  15. Miscellaneous

    1. Assignment. Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor of all assets of a party via a merger, reorganization, acquisition of substantially all assets of the applicable party or such similar transaction. Any purported assignment contrary to this section shall be void.
    2. Entire Agreement. This Agreement and any Appendices hereto constitutes the entire agreement between the parties and supersedes any previous agreements or representations, either oral or written with respect to the subject matter of this Agreement. All amendments may be made only in writing.
    3. Independent Contractors. The parties and their respective personnel are and will be independent contractors and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
    4. Notices. All notices shall be in writing and delivered either personally, or by registered mail or courier by facsimile transmission (provided that written confirmation of receipt is provided) or by email. Any such notice shall be deemed given five business days after being placed in the mail as specified, or one business day after personal delivery, facsimile transmission sending by electronic mail. Notices to Publisher will be sent to the address or email provided by Publisher upon registration to the Service. Notices to Spot.IM should be sent to support@spot.im.
    5. Non-waiver. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and will remain in full force and effect.