Confidential

Publisher Agreement Terms and Conditions

Last update: October 2023

 APPENDIX A

TERMS AND CONDITIONS

1. DEFINITIONS.

Terms not defined elsewhere in the Agreement shall have the following meaning:

1.1 Company Technology means (i) any of the Company’s proprietary software and\or services as provided under the scope of this Agreement (whether owned by the Company, assigned to, or licensed by it), and (ii) any third party technology, service or content that is offered, integrated, distributed, delivered or promoted in or from the Company Technology, including, without limitation, the Search Results.

1.2 Documentation means any explanatory materials, guidelines or other documents, whether provided in digital or physical form or made available online by the Company, including without limitation, the integration, implementation documents, content, privacy policies and related privacy guidelines provided by the Web Search Provider, third party and advertising guidelines referenced in this Agreement.

1.3 Fraudulent Activity means the activity defined as Fraudulent Activity on https://legal.center.codefuel.com/legal/fraudulent-activity-prohibited-activity/

1.4 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.  

1.5 Marks means trademarks, service marks, trade names, trade dress and associated logos, whether or not registered.

1.6 “Monetized Web Search(es)” means web searches conducted by an end user in connection with the Search URL services provided by the Company on or through the Publisher Approved Application resulting in a search result page where the Web Search Provider is displaying sponsored links.  

1.7 Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

1.8 Publisher Approved Application means the application, software, extension or web page which is described in the Cover Page, with the integration of the Search URL therein (as applicable),  that is owned by the Publisher which has been approved by the Company in writing for distribution with the Company Technology. 

1.9 Prohibited Activity means the activity defined as Prohibited Activity on https://legal.center.codefuel.com/legal/fraudulent-activity-prohibited-activity/

1.10 Search Results means the organic and/or and monetized search results as delivered by the Company through the Company Technology, including, without limitation, image, video, text, news or other results.

1.11 Third Party Content (or TPC) means any third party technology, service or content that is offered, integrated, distributed or promoted in, from or in connection with the Company Technology from time to time including, without limitation, video, image, sound or textual content, third party websites and web search services, and/or the Search Results provided as part of the Company Technology.

1.12 Web Search Assets means a web search entry point which uses and/or redirects to the Company Technology to provide search services of the Web Search Provider (as defined below) and is located on, accessed through or enabled via or by (i) the Publisher Approved Application, and (ii)  the Company Technology; including, without limitation, a search box, home page, search links, browser default search features (such as, the browsers’ address bar search and the default search box)  and any search functionality whether provided via a browser or as a desktop, mobile or browser application.

1.13 Web Search Provider(s) means the default provider(s) of web search services, functionality or features.

2. GRANT OF LICENSE. 

2.1 Subject to the terms and conditions of this Agreement, the Company hereby grants to Publisher, a worldwide (unless stated otherwise in the Documentation of the Agreement), non-sublicensable, non-transferable, fully revocable, limited, royalty-free right and license to (i) use and distribute the Company Technology, and (ii) use the Documentation internally for the sole purpose of integrating and using the Company Technology, as permitted and applicable under the scope of this Agreement. 

2.2 All rights which are not expressly granted herein are reserved by the Company.  Publisher may not make any use of the the Company Technology in whole or in part in any manner not expressly permitted by this Agreement. 

3. THE COMPANY’S RIGHTS AND OBLIGATIONS.

3.1 The Company retains the exclusive right to determine and set from time to time one or more Web Search Providers available in the Web Search Assets, including, without limitation, the right to change any definitions that may be required as part of the setting of such Web Search Provider. Publisher agrees and acknowledges that the Web Search Provider may restrict traffic sourcing and volume from specific implementations of the Company Technology or sources, and certain categories or portions of traffic at the keyword level or page source level. 

3.2 During the Term, the Company or a third party provider may, in its/their sole discretion, update, upgrade or cease to provide the Company Technology or any part thereof. 

3.3 The Company is not responsible for, and shall have no liability of any kind or nature with respect to any third party content used by Publisher or end users via the Company Technology or otherwise (or for any third-party sites linked through it).

3.4 Publisher agrees that the Company may (a) feature the Publisher name and Marks in different marketing outlets and/or collateral, including, without limitation, newsletters, case studies, web pages and email or ad campaigns; and/or (b) identify Publisher as a user of the Company Technology on the Company websites, client lists and in other marketing materials and channels. In addition, Publisher agrees that the Company may issue a press release and make a public announcement regarding the parties’ engagement and partnership hereunder.

3.5 The Company or Web Search Provider, at the Company’s expense, will be entitled to examine the records of Publisher and the Publisher’s use of the Company Technology that are reasonably necessary to determine Publisher’s compliance with its obligations under this Agreement. Publisher undertakes to cooperate with the Company to the reasonable extent required by the Company in order to perform the compliance examination set forth in this section.

3.6 Subject to the availability of data from the Web Search Provider, the Company may provide Publisher with reports and analysis regarding the performance of the services granted under this Agreement in a form determined from time to time by the Company (the “Reports”). Notwithstanding the foregoing, the Company will not be liable for any unavailability or inaccuracy, temporary or otherwise, of any data or information provided within the Reports.

3.7 The Company shall be entitled to amend and change the outside policies linked and referred to throughout this Agreement and it is Publisher’s responsibility to check such policies regularly to ensure continued compliance. Notwithstanding, the Company undertakes to inform the Publisher of any material change it applies to such outside policies except for the data transfer clauses referred to in Section

3.8 which the Company shall be entitled to change to reflect applicable law without notice to Publisher. Upon receipt of such notice, Publisher will be entitled to terminate the Agreement without any right for compensation whatsoever. In the event that the Company fails to inform the Publisher accordingly, it will not be construed as a breach of this Agreement and any such material change will not be applicable to the Publisher until Publisher receives notice of such change.

4. PUBLISHER’S RIGHTS AND OBLIGATIONS. 

4.1 Publisher may seek to use the Company Technology through or in connection with one or more of the Publisher Approved Applications, in accordance with the terms of this Agreement. Publisher shall first submit to the Company, for the Company’s prior review, any application, software, extension or web page, including, without limitation, a software bundle, that is to be used or integrated with the Company Technology and distributed as a Publisher Approved Application (the “Proposed Application”). The Company shall instruct the Publisher to make any required revisions and modifications to the Proposed Application in order to comply with the terms of this Agreement. For the avoidance of doubt, any Proposed Application shall be approved in writing by the Company in advance of any use of, or integration or distribution, with the Company Technology as a Publisher Approved Application. Notwithstanding the Company’s approval of any Proposed Application or Publisher Approved Application, neither a Proposed Application nor Publisher Approved Application shall contain any Prohibited Activity or Fraudulent Activity. Publisher further undertakes to obtain the Company’s prior written approval before making any material changes to the design, architecture or functionality of the Publisher Approved Application version that was approved by the Company. 

4.2 Any change requested by the Publisher to the Publisher Approved Application, as included in the Cover Page, approved by the Company, will be subject to the Company’s prior written approval. For avoidance of doubt and notwithstanding the Publisher Approved Application description included in the Cover Page, (which does not constitute a final written approval by the Company), Publisher’s rights under the Agreement shall come into effect only and after Publisher has received the Company’s written approval. In addition, distribution in a different market shall be considered a different implementation requiring the Company’s prior written approval (eg. with regards to country and language).

4.3 Traffic Quality. The Company may, at any time, require that a quality score be maintained for traffic from Publisher, in a manner and method determined by the Company. Publisher will maintain traffic quality levels as set by the Company If Publisher receives notification from the Company of any new or revised quality management requirements Publisher shall collaborate in good faith with the Company to implement the specifications necessary to implement such quality requirements within the timeframe specified by the Company, which period will account for any technical work needed for Publisher to implement the specifications. If the Company notifies Publisher that the traffic quality of a Publisher Approved Application has fallen below acceptable levels (as determined by the Company), Publisher will immediately take all necessary steps to improve the traffic quality of such Publisher Approved Application, including by removing low quality traffic.  If, after the Company provides the notice described above, Publisher’s traffic quality remains below the level required by the Company past the expected timeline for improvement, then, at the Company request, Publisher will promptly remove the poor quality traffic otherwise the Publisher Approved Application may be considered a rejected or suspended.  

4.4 Under no circumstances may the Publisher offer, promote, distribute or provide access to the applicable the Company Technology, either directly or indirectly, on channels (including, without limitation, websites, applications or online services including the Publisher Approved Application itself), or through the use of any advertisement, content, or other materials that (i) contain any Prohibited Activity or Fraudulent Activity or is otherwise in breach of this Agreement, or (ii) are directed to children (under 13 or 16, as applicable, based on relevant laws of the jurisdiction of the end user). Without derogating from the foregoing, Publisher represents and warrants that it shall not deploy or use the Company Technology in any manner or context whatsoever which shall make the Publisher Approved Application, the Company or the Company Technology subject to the Children’s Online Privacy Protection Act of 1998 (“COPPA”). Furthermore and without derogating from the foregoing, Publisher must provide the Company with details of all traffic sources, channels, servers used (and their respective IP addresses), advertisements, content, and/or other materials used to offer, promote or distribute the Company Technology. Publisher undertakes that it shall not, nor shall it allow any other person or entity to use the Company Technology and any of its related features in any manner that constitutes Prohibited Activity or Fraudulent Activity.  

4.5 The Company may allocate identification names and numbers (“GID”) to be associated with the Publisher Approved Application for reporting and designation purposes.

4.7 The Publisher acknowledges that the Company may send notifications to Publisher approving any update or change of the Publisher Approved Application(s) and\or the list of GIDs. Such notifications shall be binding upon the Publisher. 

Publisher acknowledges that the Company shall have the right to disapprove previously approved Publisher Approved Applications, or methods or means of distribution of the Publisher Approved Application, in the event that (i) any of those are determined to contain Fraudulent and/or Prohibited Activity, and/or (ii) the Web Search Provider disapproved the implementation. Upon receipt of notice of the Company’s rejection of a new or previously approved Publisher Approved Application and/or method or means of distribution thereof, Publisher shall immediately cease using the the Company Technology with any or all of them referenced in the notice. For the removal of doubt, the license granted by the Company to Publisher under the scope of this Agreement may be revoked in its entirety in the event that the Company does not provide written approval for any of the Publisher’s software or services or in case the Company rejects all previously authorized Publisher Approved Applications. In such case, the Company may terminate the Agreement with immediate effect upon providing written notice to Publisher and the Company shall not have any liability to Publisher whatsoever.

4.8 Except as expressly specified in this Agreement, Publisher will not, and will not permit or authorize any other person or entity to: (a) use, copy, create derivative works of or modify the the Company Technology or the Documentation, or any parts thereof; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Company Technology or the Documentation to any other person or entity; (c) use the Company Technology or the Documentation in any unlawful manner, for any unlawful purpose, in any manner that infringe on any third party’s proprietary rights, or in any manner inconsistent with this Agreement or with any applicable law, statute, ordinance or regulation including laws and regulations governing (a) misleading, false or deceptive advertising, anti – discrimination, unfair competition or export control; or (d) disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Company Technology or any part thereof, in whole or in part.

4.9 Publisher shall ensure that there is no use of, or access to, any Web Search Assets which are not in compliance with the terms of this Agreement or not otherwise approved by the Company, and Publisher shall monitor and disable any such access or use. At all times during the Term, the Company reserves the right to take any action, in its sole discretion, with respect to the means used by Publisher to deploy and/or use the Web Search Assets and in the event the Company disapproves of such deployment or use, and without derogating from the Company’s right of termination under this Agreement, the Company shall have the right, upon written notice to Publisher, to suspend performance hereunder until Publisher implements adequate remedies as reasonably required and determined by the Company.

4.10 Without derogating from the Company’s right of termination under this Agreement, Publisher acknowledges and agrees that at any time during the Term, if the Company believes, in its sole judgment, that a Prohibited Activity or Fraudulent Activity is taking place or that the Publisher is using the Company Technology in breach of this Agreement, the Company shall have the right (without notice to Publisher) 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 Company Technology or (b) use of the Company Technology in breach of the Agreement; and/or (ii) suspend or cease to provide the Publisher with any of the Company Technology.

4.11 In the event that Prohibited Activity or Fraudulent Activity pertaining to the Company Technology is detected by Publisher or comes to the Publisher’s attention, Publisher shall immediately remove or cause the removal of such activity and report to the Company its actions.

4.12 Publisher must comply with the Documentation and any additional guidelines and other instructions provided by the Company from time to time. Any deviation from the Documentation the Company’s guidelines or instructions must be approved in advance in writing by the Company. Publisher acknowledges and agrees that (i) any integration or package containing a Publisher Approved Application and Company Technology will comply with and adhere to the integration guidelines, and the Documentation which are incorporated herein by reference; (ii) the Company has the right to take any measures needed to prevent or correct any integration which does not comply with the aforementioned guidelines.

4.13 Publisher and the Publisher Approved Application shall remain at all time compliant with applicable data protection regulation requirements, including, without limitation, General Data Protection Regulation (EU) 2016/679 (GDPR), the Directive 2002/58/EC (Regulation on Privacy and Electronic Communications) (ePrivacy), the California Consumer Privacy Act (CCPA), the California Privacy Rights Act (CPRA), the California Online Privacy Protection Act (CalOPPA), the Virginia Consumer Data Protection Act (CDPA), (jointly “Applicable Data Laws”). Without derogating from the generality of the aforesaid, Publisher shall prominently display and comply with a privacy policy on the Publisher Approved Application that complies with all Applicable Data Laws and  includes  a full, accurate, and clear disclosures in line with transparency requirements, including: (i) that third parties may collect or receive information (including, without limitation, IP addresses, cookie IDs and search terms) and use that information to provide measurement services, search results and other advertisements, including personalized and targeted search results and advertisements. (ii) of how and where users can opt-out of data selling or the collection and use of information for personalized monetized search result and ad targeting, including a fully functional and accessible opt-out or consent withdrawal option (as the case and jurisdiction may be) from interest-based advertising, (iii) regarding the placement, use and reading of first and third party cookies and related technologies for measurement, analytical and advertising purposes, including in connection with the display of personalized and targeted search results and advertisements; and (iv) of the use of the respective Web Search Provider for any web search services as notified by the Company from time to time. In addition, Publisher shall ensure that it deploys appropriate notices and functionality on the Publisher Approved Application to obtain prior informed consent from users of the Publisher Approved Application to the collection of personal information by Publisher and the Company hereunder. For the avoidance of any doubt, the Publisher shall not send any requests for Search Results to the Company that are based on the profiling or behavioral advertising of an end user to the extent that such end user has not agreed to behavioral advertising or has opt-ed out of behavioral advertising in connection with the Publisher Approved Application.

4.14 Publisher hereby acknowledges that it is aware, and it will advise its employees and consultants, that the Company is a subsidiary of Perion Network Ltd. (“Perion”) a publicly traded company, and as such, United States and Israeli securities laws prohibit any person who has received material, non-public information concerning Perion and/or the Company from purchasing or selling securities of Perion 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. Publisher is aware of Perion’s Code of Business  and agrees that the Publisher, its employees and consultants will act in accordance therewith at all times during the Term of this Agreement.

4.15 Publisher further undertakes that as Perion is a publicly traded company, Publisher will not, at any time, issue any press release and/or any public announcement relating to Perion and/or the Company, this Agreement and/or the fact that the parties have engaged hereunder, without the prior written approval of the Company. Publisher further acknowledges and agrees that Perion and/or the Company may be obliged, as part of certain disclosure rules, to disclose the existence of the engagement hereunder and its terms and conditions. Publisher hereby waives any claim of any sort against Perion and/or the Company for any such disclosure. 

5. COMPETING SERVICES AND EXTENDED TERM.

During the Term of this Agreement, the Publisher agrees and undertakes the following:

5.1 Whenever Publisher offers, promotes and/or distributes the Company Technology on or through any advertisement, promotion, content, website, application and/or other materials, it shall not offer, promote, make available, distribute and/or link to any software or services that compete with, are similar to or are substitutes for the Company Technology, in whole or in part, including, without limitation, providers of web search services, functionality or features, that compete with, are similar to or are substitutes for, the Web Search Provider (collectively, the “Competing Services”) in connection with such advertisement, promotion, content, website, application and/or other materials, unless otherwise approved in writing by the Company on a case by case basis. 

5.2 Without derogating from Section 5.1, Publisher will not, directly or indirectly, with respect to an end user which has downloaded, installed and/or uses the Company Technology (including as part of a Publisher Approved Application that incorporates the Company Technology): (i) remove, uninstall, disable or interfere with the Company Technology or the Web Search Provider made available by the Company Technology in the Web Search Assets or any of the definitions or functionalities related to the Web Search Provider or the Web Search Assets; (ii) offer, provide, make available, distribute or link to any Competing Services, unless otherwise approved in writing by the Company on a case by case basis; or (iii) permit, authorize or encourage a third party (including, without limitation, an end user) to engage in any of the activities set forth in clauses (i) or (ii). 

5.3 Whenever Publisher offers, promotes, distributes, packages or bundles the Company Technology within a certain installation flow, it shall not promote, use, offer, package, bundle and/or distribute Competing Services within the same installation flow.

5.4 Without derogating from any other Section in this Section 5, if and to the extent the Company provides Publisher with the Company Technology services hereunder, then Publisher agrees that such services will be the exclusive web search services made available, used, promoted, offered or distributed by the Publisher for all API-supplied internet search functionality in the Publisher Approved Application in the supported Territories (as stated in the Documentation), during the Term.

5.5 The parties hereby agree that in the event that this Agreement expires or is terminated (for any reason), then for a period of twelve (12) months thereafter (the “Extended Term”) the Publisher will not, directly or indirectly, nor shall it encourage any third party (including, without limitation, an end user) to, directly or indirectly, remove, uninstall, disable or interfere with the Company Technology or any functionality thereof that are available to existing users at the time of such termination or cessation. During the Extended Term and provided that the Publisher remains in full compliance with the terms of the Agreement, Publisher shall be entitled to receive full payment for the Company Technology according to the payments terms as set forth in the Cover Page.

5.6  Should the Publisher, directly or indirectly, breach this Section 5 during the Term or breach Section 5.5 during the Extended Term, then immediately from the date of any such breach (the “Change Date”) and without derogating from any other rights of the Company hereunder, Publisher’s right to receive and the Company’s obligation to pay Publisher any amounts in connection with this Agreement (including any amounts accrued to Publisher prior to the Change Date) shall be null and void. The parties agree that the foregoing amount is an agreed upon liquidated damage and not a penalty.

6. PAYMENTS. 

6.1 Subject to Publisher’s full compliance with the terms and conditions of this Agreement, during the Term hereof, Publisher may receive payment in accordance with the payment provisions set forth in the Cover Page. 

6.2 Publisher shall issue a monthly invoice to the Company for payment due to it no later than fifteen (15) days after the end of the previous calendar month for which payment is due. The Company shall make monthly payments to the Publisher within thirty (30) days after the end of the month of receipt of a correct invoice, provided that Publisher has provided its updated bank account details to the Company in a manner notified by the Company from time to time (the “Payment Information”). Publisher agrees to hold the Company liable for payments solely to the extent that proceeds from the Web Search Provider related to such payments have been received by the Company. If proceeds from the Web Search Provider have not been received by the Company in respect of Publisher activity, the Company shall be under no obligation to pay the Publisher for such activity and such non-payment shall not be considered a breach of this Agreement. Notwithstanding anything to the contrary, Publisher shall not be entitled to any payment for any transactions or services after ninety (90) days following the end of the month in which such transactions or services occurred.

6.3 Subject to Section ‎6.2, 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 the Company’s payment obligation hereunder.

6.4 Publisher hereby authorizes and appoints the person indicated in the Cover Page of this Agreement (the “Authorized Representative”) to exclusively act, in its name and on its behalf, to provide, amend and/or replace Publisher’s Payment Information. Any update or modification of the Payment Information by the Authorized Representative shall be deemed to be made by the Publisher.  Publisher may change the Authorized Representative by providing written notice to the Company which should be duly signed by the authorized representative of Publisher.

6.5 To reduce administrative costs, the parties agree that the Company shall not be required to make any payment to Publisher until such time that the payment owed to Publisher equals or exceeds two hundred and fifty U.S. Dollars (US$ 250). 

6.6 Each party shall be responsible for paying all applicable taxes, duties and other governmental charges imposed on it with respect to this Agreement and its performance hereunder. The Company 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, Publisher acknowledges that payments by the Company to Publisher may be subject to further deductions for payment processing fees by correspondents and Publisher’s own banking institution(s) which shall be fully borne by Publisher.

6.7 The Company shall have the right to withhold and/or offset against any payments due to Publisher hereunder any amounts due by Publisher to the Company under this Agreement or any other agreement that the parties may have entered into with each other, including any amounts that the Company may have previously paid to Publisher in excess of amounts which were due to Publisher.

6.8 Publisher will not be entitled to receive or retain, and the Company may deduct or withhold, any amounts hereunder that resulted from any of Publisher’s activities which are in breach of this Agreement. If the Web Search Provider, in its sole judgement and discretion and at any point of time, deducts any proceeds in respect of Publisher activity (whether retroactively or otherwise), the Company 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. 

6.9 Without derogating from the Company’s rights under this Agreement, if Publisher engages in Prohibited Activity or Fraudulent Activity, is in breach of this Agreement or acts contrary to the Documentation, 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 the Company’s satisfaction, the Company shall have the right not to pay any compensation earned by the Publisher in connection with GIDs that were engaged in such activity during such period. The Company will notify Publisher of this detection by email. In addition, and without derogating from the foregoing, upon the Company’s request, Publisher shall reimburse the Company 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.

7. PROPRIETARY RIGHTS. 

7.1 Each Party retains all right, title and interest in and to its respective technology, software, products and services included under the scope of this Agreement, including any Intellectual Property Rights therein (collectively, the “Respective IP”) and any derivatives therefrom. The parties agree that the Documentation and the Company Technology and any part thereof shall be the sole property of the Company. As between the Company and Publisher, any use of the Respective IP shall inure to the benefit of its respective owner (including the Web Search Provider), 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.

7.2 The Publisher will not reproduce, distribute or display any of the trademarks, service marks, logos and other distinctive brand features of the Company or the Web Search Provider or any of their affiliates without the Company’s prior written approval. Publisher’s use of any Intellectual Property of the Company or the Web Search Provider, subject to receipt of approval, will comply with the Documentation and guidelines provided by the Company and shall not use any such Intellectual Property in any way that is misleading or deceptive. Publisher will not take any action which may suggest or imply that the Company or the Web Search Provider has endorsed Publisher or any product or service thereof, or that there is any connection or relationship between the Company, the Web Search Provider and Publisher.

7.3 The Company reserve the right to further limit any license grant to the extent that Publisher’s use, distribution or display is reasonably likely to negatively impact the goodwill or reputation associated with the Company or the Web Search Provider’s Marks. 

7.4 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.

8. CONFIDENTIALITY AND PRIVACY

8.1 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 subject to Section 3.4 (i), the existence and terms of this Agreement; (ii) any implementation guidelines and documentations provided by the Company or by the Company’s Web Search Providers; 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 Company Technology, including, without limitation, information gathered in connection with delivery of the Search Results (including the content and code of any Search Results), click-stream information, traffic sources, and size and placement data and any other data relating to the operation of the Company Technology with the Publisher Approved Application shall be the Confidential Information of the Company. 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 this Agreement; (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, the Company may disclose Publisher’s Confidential Information solely to the extent required under its agreement with the Web Search Provider. 

8.2 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.

8.3 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 this Agreement.   

8.4 The duty to protect Confidential Information shall remain in full force and effect for as long as the Confidential Information remains confidential.

8.5 For purposes of this 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 this Agreement.

8.6 During the Term, the Company and providers of TPC (including, without limitation, the Web Search Provider) may collect, process and use Personal Data about Publisher and the Personal Data of its end users. For technical and operational reasons, the Company and such providers of TPC may transfer such personal data to their servers or the servers of their affiliated companies which are located in the United States and/or other non-European Economic Area (EEA) jurisdictions, as applicable. Although the laws and regulations relating to the processing of Personal Data in these jurisdictions may be less stringent and not offer the same protection as in the European Union, the Company with respect to its own storage and processing, will take steps to ensure that a similar level of protection is given to such personal data. Publisher hereby expressly agree that such personal data may be transferred to such countries for storage and processing.

8.7 With respect to Personal Data collected from end users from the European Union in connection with this Agreement, the parties represent and warrant that as between the Company and the Publisher, each party shall be considered separate and independent Data Controllers (as defined under applicable EU law). 

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 this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and the performance thereof do not violate any other agreement to which it is a party, (c) this Agreement constitutes the legal, valid and binding obligation of such party, (d) any and all activities and obligations it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations, including, without limitation, privacy laws (including Applicable Data Laws), rules and regulations, and including applicable platforms policies governing the hosting and distribution of Publisher Approved Application 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 this Agreement. Notwithstanding Sub-Section 9.1(d), the Company does not represent or warrant that the Company Technology is or will be in compliance with the provision(s) of the COPPA, and, therefore, any of the Company’s indemnification obligations set forth under Section 10.1 of this Agreement will not apply to any claim related to COPPA.

9.2 The Publisher represents and warrants that the Publisher itself and the Approved Application and any other related 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, nor has it contained or performed any Prohibited Activity or Fraudulent Activity or been used in connection with any Prohibited Activity or Fraudulent Activity prior to the Effective Date of this Agreement; (ii) breach any of the Documentation and guidelines provided by the Company or the Web Search Provider (ii) infringe, misappropriate or otherwise violate the Intellectual Property Rights of any person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations (e.g., copyright or trademark symbols), or labels of the origin or source of services, software, or other materials; and (iii) incorporate any Publicly Available Software, in a manner that may subject the Company or the Company Technology, 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 The Company represents and warrants to Publisher that the Company Technology and Documentation are provided by the Company “AS-IS”. The Company does not represent or warrant that: (i) the Company Technology, 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 Company Technology or any of its products, services or software or access to the Documentation will be uninterrupted; or (iii) Publisher will profit or derive any economic benefit from Publisher’s use of the Company Technology or Documentation. In addition, Publisher acknowledges and agrees that the Company is not responsible for and shall not be liable for any TPC offered, integrated, distributed, delivered or promoted in or from the Company Technology, including, without limitation, the Search Results. The Company does not make and expressly disclaims any and all warranties of any kind, whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use, and non-infringement with respect to such third party technology, service or content. 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 this Agreement and to the fullest extent allowable by law, the 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.

9.4 Publisher acknowledges that the Company Technology may contain certain third-parties` Publicly Available Software components which are governed by their respective licenses and not by the license granted under this 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 Company Technology and/or in the Documentation provided to Publisher by the Company and/or as otherwise provided by the Company in writing to Publisher. The license granted herein does not apply to any Publicly Available Software accompanying the Company Technology, and, except if otherwise expressly provided in this Agreement, the Company hereby disclaims any and all liability to Publisher with respect to the Publicly Available Software.

10. INDEMNIFICATION.

10.1 Except as expressly provided in this 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 this Agreement; and/or (ii) a claim that the Indemnifying Party’s technology or application, as the case may be, infringe any third party’s Intellectual Property Rights (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: (i) any use of the Indemnifying Party’s deliverable(s) for which it was not designed; or (ii) 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. For the avoidance of doubt, the Company shall not indemnify Publisher for any Claim in connection with any TPC offered, integrated, distributed, delivered or promoted in or from the Company Technology.

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 the Company shall not be required to allow Publisher to assume the control of the defense of a Claim to the extent that the Company determines that (a) such claim relates to any Company Technology, (b) any relief other than monetary damages is sought against the Company, (c) there may be a conflict of interest between the Publisher and the Company 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 the Company. 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 THIS AGREEMENT OR WITH RESPECT TO THE COMPANY, THE INSTALLATION OR USE OF, OR INABILITY TO USE, THE COMPANY TECHNOLOGY OR THE DOCUMENTATION 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 SUBJECT TO THE TERMS OF SECTION 11.3, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNTS RECEIVED BY PUBLISHER UNDER THIS 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 PUBLISHER’S LIABILITY FOR BREACH OF ITS OBLIGATIONS UNDER SECTIONS 5 (COMPETING SERVICES AND EXTENDED TERM), 7 (PROPRIETARY RIGHTS), 8 (CONFIDENTIALITY AND PRIVACY) AND 10 (INDEMNIFICATION) AND NON-COMPLIANCE WITH APPLICABLE PRIVACY LAWS, OR FOR FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. 

12.TERM AND TERMINATION.

12.1 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 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 this Agreement, for any reason and without liability, upon providing the other party with thirty (30) days’ prior written notice. 

12.3 Notwithstanding anything to the contrary, the Company may suspend and\or terminate this Agreement, immediately upon written notice to the Publisher, if (i) the Publisher is engaged in any Prohibited Activity or Fraudulent Activity based on evidence provided by the Company; (ii) the Publisher does not comply with the Company’s guidelines and policies (iii) the Web Search Provider does not make its search services available to the Company as set forth in this Agreement; or (iv) the Company reasonably determines that it is commercially impractical for the Company to continue providing the Company Technology under the terms of this Agreement as a result of legal, business or technical considerations. The Company may also terminate this Agreement in accordance to Section 4.6 above.

12.4 Either party may immediately terminate this Agreement (without derogating from the Company’s right of immediate termination under Sections 4.6 and 12.3): (i) if the other party has breached any of its representations or warranties set forth in this Agreement and failed to cure such breach within five (5) days from receipt of a written notice thereof; (ii) by written notice if there exists a series of non-cured breaches or persistent, repeated breaches of the Agreement; or (iii) 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 (iii) shall immediately notify the other party in writing. 

12.5 During the period of suspension for any reason all rights and licenses to distribute the Company Technology granted to Publisher herein shall immediately be suspended.

12.6 Upon the termination of this Agreement for any reason: (i) all rights and licenses to use and distribute the Company Technology and Documentation granted to Publisher herein shall immediately be terminated; and (ii) each party shall be entitled to receive all payments due to the other party according to this Agreement accruing prior to the date of termination of this Agreement. Following such final payment, neither party will be entitled to receive any payment from the other party under Section 6 hereof, provided, however, that in the event that the Company has terminated this Agreement in accordance with Section 12.4(i), Publisher 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 this Agreement, in whole or in part, shall not limit either party from pursuing other remedies available to it.

13. GENERAL. 

13.1 Entire Agreement; Amendments. This 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 this 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 this 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 this Agreement will survive any termination of this Agreement: 3.5, 5.5, 5.6, 6, 7, 8, 10, 11, 12, 13 and Commercial terms detailed in the Cover Page as it relates to payment during the Extended Term.

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 this Agreement nor any interest herein may be assigned by Publisher nor any obligations or performance of Publisher delegated without the prior written consent of the Company. Any attempted unauthorized assignment or delegation shall be null and void. Upon providing written notice to the Publisher, the Company may assign this Agreement or any rights herein or delegate any obligations of the Company hereunder. The Company will be released of all rights or liabilities under this Agreement upon consummation of such assignment or delegation.

13.5 No Third Party Beneficiaries. Unless specifically noted otherwise herein, this 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 this Agreement. 

13.6 Severability. If any provision of this 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 this 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 HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. 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 Trade Compliance. Publisher represents and warrants that it and its affiliates and partners: (a) shall comply with all applicable sanctions laws and regulations (including, without limitation, sanctions regulations administered by the U.S. Office of Foreign Assets Control) and all applicable import or export laws and regulations (including, without limitation, the U.S. Export Administration Regulations and International Traffic in Arms Regulations); and (b) are not under any financial sanction or trade embargo, and not on the U.S. Treasury Department’s list of Specially Designated Nationals (SDN) or the U.S. Department of Commerce Denied Person’s List or Entity List or any other applicable restricted party list.

13.10 Notices. All notices and other communications required or permitted under this 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 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 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. The e-mail address provided by Publisher within its control panel shall be regarded as Publisher’s email address for delivery of written notices hereunder. 

13.11 Counterparts.  This 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 electronic delivery in .pdf format or other comparable format shall be sufficient to bind the parties as original signature.