CONDUIT PUBLISHER AGREEMENT
The Conduit Publisher Agreement has been updated on March 28, 2012. By accessing and using the Conduit technology and the Conduit website following such update, you indicate that you have read and agree to the updated terms and conditions of the Conduit Publisher Agreement.
Certain elements of the Conduit Technology or other services or programs offered by Conduit may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions (the "Additional Terms") in order to use or access them. If there is a conflict between the terms of this Agreement and the Additional Terms the Additional Terms will take precedence. Additionally, if you use the Content Sharing Services (defined below) to share, distribute or use materials via the Conduit Technology you agree to be bound by the terms of the Conduit Content Sharing Terms of Service available at http://www.conduit.com, which are incorporated herein by reference.
BY CLICKING “CREATE MY ACCOUNT” (OR SIMILAR LANGUAGE PROVIDED BY CONDUIT), BY ACCESSING OR USING THE CONDUIT TECHNOLOGY OR YOUR PUBLISHER ACCOUNT, OR BY CREATING AN APPLICATION YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT AND AGREE THAT CONDUIT WILL TREAT YOU AS A PUBLISHER ON THE CONDUIT NETWORK FROM THAT POINT ONWARDS. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE CONDUIT TECHNOLOGY. IF YOU CONSENT TO THIS AGREEMENT ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT AND YOUR CONSENT TO THIS AGREEMENT WILL BE TREATED AS THE CONSENT OF THE BUSINESS. IN THAT EVENT, "PUBLISHER", "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT BUSINESS. YOU ALSO CONSENT TO THE USE OF: (A) ELECTRONIC MEANS TO COMPLETE THIS AGREEMENT AND TO PROVIDE YOU WITH ANY NOTICES GIVEN PURSUANT TO THIS AGREEMENT; AND (B) ELECTRONIC RECORDS TO STORE INFORMATION RELATED TO THIS AGREEMENT AND YOUR USE OF THE CONDUIT TECHNOLOGY. CONDUIT RECOMMENDS THAT YOU PRINT OUT OR SAVE A LOCAL COPY OF THE AGREEMENT FOR YOUR RECORDS.
You may not use the Conduit Technology if (a) you are not of legal age to form a binding agreement with Conduit, or (b) you are a person who is either barred or otherwise legally prohibited from using the Conduit Technology under the laws of the country in which you are resident or from which you access or use the Conduit Technology.
For the purpose of this Agreement, the following capitalized terms shall have the following meanings:
- "Application(s)" means any software application generated or administered by Publisher via its use of the Conduit Technology in compliance with the terms and conditions of this Agreement, for use on the internet, mobile phone and/or any other current or future platform or media. For example, an Application may be a Toolbar, a Conduit powered Mobile application or any other Conduit powered application, both of which may be made available to End Users.
- "Conduit" means Conduit Ltd. Conduit's address for receipt of notices hereof is 950 Tower Lane, Suite 1788, Foster City, CA 94404.
- "Conduit Privacy Policies" means the Conduit privacy policies available at http://www.conduit.com/privacy/, which contain information about Conduit's policies and procedures regarding the collection, use and disclosure of information Conduit receives from users of the Conduit Technology, as may be updated by Conduit from time to time and which are incorporated herein by reference.
- "Conduit Technology" means Conduit’s proprietary Applications generating platform and any other products and services provided by Conduit therein or in connection thereto for use on the internet, mobile phone and/or any other current or future platform or media (whether owned by Conduit or licensed by it) including, but not limited to, software and tools provided by Conduit to Publisher which enable the implementation and administration of the Toolbar and/or apps in connection with the Conduit Technology, but not including TPC.
- "Content" means data, information, graphics, links, web pages, signs, images, software and code, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.
- "Content Sharing Services" means the service, software and features made available by Conduit which enables web publishers and Content providers to access, distribute and share their Content with third parties as well as select and use third party Content shared by others.
- "End User" means an individual user who installs and/or uses an Application.
- "End User Content" means any Content, information or other materials which End Users post, upload, link and otherwise submit to or via an Application or any Application component.
- "EULA" means Conduit’s End-User License Agreement to which End Users must provide their assent as part of the Application installation process.
- "Intellectual Property Right(s)" means: (i) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (ii) all registered and unregistered trademarks, service marks, trade names, trade dress, logos and registrations and applications for registration thereof; (iii) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (iv) all trade secrets and confidential business and technical information (including, but not limited to, research and development, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production and other designs, drawings, engineering notebooks, industrial models, software and specifications); (v) all rights in databases and data compilations, whether or not copyrightable; and (vi) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
- "Publisher" means an individual or entity that creates, implements and/or administers an Application.
- "Publisher Materials" means any Content provided or used by Publisher in connection with an Application, including that which a Publisher adds to any part of the Conduit Technology, the TPC, or to Publisher’s website, including any new releases or new versions thereof and any Updates thereto.
- "Third Party Content" or "TPC" means any third party Content and technology that is offered, distributed or promoted in or from the Conduit Technology.
- "Toolbar" means a toolbar created and/or customized by Publisher via its use of the Conduit Technology in compliance with the terms and conditions of this Agreement.
- "Updates" means bug fixes, error corrections and patches; and does not include new versions or new releases.
Conduit reserves the right to modify, discontinue or terminate the Conduit Technology or the TPC (collectively, the “Conduit Platform”) or to modify this Agreement at any time and without prior notice. If Conduit modifies this Agreement it will post the modification on its website or provide you with notice of the modification. However, it is Publisher’s responsibility to review the Agreement from time to time-to-time to check for updates. Conduit will also update the "Last Updated Date" at the bottom of the page. By continuing to access or use an Application, any TPC, any Conduit Technology or your Publisher Account after Conduit has posted a modification on its website or has provided Publisher with notice of a modification, Publisher agrees to be bound by the modified Agreement. If the modified Agreement is not acceptable to Publisher, Publisher’s only recourse is to cease using the Application or the Conduit Platform. Publisher can review the most current version of this Agreement at any time at: http://www.conduit.com/.
- APPLICATION CUSTOMIZATION.
- In connection with registration with Conduit as a Publisher, Publisher will be provided with or may chose a username and password with which Publisher shall be able to access its online account available on www.conduit.com, from which Publisher can use elements of the Conduit Platform (the "Publisher Account"). Publisher agrees to provide accurate, current and complete information during the registration process and to keep such information up to date. Conduit reserves the right to suspend or terminate the Publisher Account if in Conduits’ sole determination it reasonably believes that any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. Publisher is responsible for safeguarding and maintaining the confidentiality of its username, password and corresponding Publisher Account information. Publisher agrees that it is entirely and solely responsible for any and all activities or actions that occur under its Publisher Account, whether or not Publisher has authorized such activities or actions. Publisher agrees to notify Conduit in writing of any unauthorized and/or fraudulent use of its Publisher Account, an Application, the name of its Application or its username or password. For purposes hereof, Publisher's identifying details will be those provided by it during the registration process for creating its first Application hereunder or as may be updated during the Term (as defined below) subject to Conduit's prior written approval. Publisher may create additional Applications by using any tools and/or features available in the Publisher Account (to the extent applicable).
- Without limiting any other terms of the Agreement, in the event that Publisher does not access its Publisher Account for a consecutive period of six (6) months or more, Conduit may change the name of, disable or remove from the Conduit servers any Application associated with such Publisher Account or suspend access to or terminate such Publisher Account without notice.
- Conduit retains the exclusive right in its sole discretion to: (a) determine which features, services, products, software or other tools will be available for Publisher’s use via the Conduit Platform; and (b) add, change or remove any Content, materials and/or functionality made available in any Application or in the Conduit Platform at any time, with or without reason. For example, Conduit may change the settings and/or appearance of any part of the Conduit Technology or any elements thereof which may be provided in an Application or otherwise, without prior notice or Conduit may provide any Updates, new versions, new releases and upgrades to any Conduit Technology or any other elements thereof. Notwithstanding the foregoing, the Publisher Materials will not be modified, but the format of the Publisher Materials as provided in an Application may change as a result of the technical removal or addition of a functionality or element of a Conduit Technology from an Application.
- Conduit retains the exclusive right to determine and set from time to time one or more default providers of web search services, functionality or feature (the "Web Search Feature") that may be available in an Application, for any Application, including, without limitation, the right to change any definitions that may be required as part of the setting of such Web Search Feature. Publisher will not: (i) modify, remove or interfere with the Web Search Feature provided in or made available in any Application or the definitions or functionalities related to the Web Search Provider; (ii) provide, make available or link to any providers of web search services, functionality or features, including without limitation references or advertisements to providers of web search services, functionality or features,, that compete with or are similar to or are substitutes for, the Web Search Feature provided in or made available in any Application; (iii) provide, make available or link to any provider of web search services, functionality or features in any Application that does not provide or makes available any Web Search Feature; or (iv) permit, authorize or encourage a third party to engage in any of the activities set forth in clauses (i) or (iii).
- Publisher shall ensure that there is no use of, or access to any Web Search Feature which is not in compliance with the terms of this Agreement or not otherwise approved by Conduit, and Publisher shall monitor and disable any such access or use by unauthorized parties. Furthermore, at all times during the Term, Conduit 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 Feature, and in the event Conduit disapproves of such deployment and/or use, Conduit shall have the right, upon written notice to Publisher, to suspend Conduit’s performance hereunder until such time that Publisher implements adequate remedial modifications as reasonably required and determined by Conduit.
- In the event that Conduit offers certain unique features or functionality such as, video search or music features as part of the Conduit Technology (each a "Unique Feature"), Publisher shall not modify, remove or interfere with Unique Features including, but not limited to the default settings and/or the definitions thereof.
- LICENSE AND RESTRICTIONS.
- Subject to the terms and conditions of this Agreement, Conduit hereby grants to Publisher a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable license or sublicense, as applicable, during the Term to: (a) use the software and tools that are provided as part of the Conduit Technology to create and implement an Application; (b) distribute and administer an Application; and (c) access and use the Conduit Platform to the extent permitted hereof. All rights which are not expressly granted herein are reserved by Conduit. Publisher may not make any use of the Conduit Platform in whole or in part in any manner not expressly permitted by this Agreement.
- Publisher hereby grants to Conduit and its corporate affiliates a worldwide, royalty free, non-exclusive right and license (with the right to sublicense) to: (a) use, reproduce, modify, distribute, perform, transmit, display and access the Publisher Materials which Publisher has added to the Conduit Platform solely for the purposes of making the Publisher Materials available in an Application, promoting an Application and implementing any changes or updates to an Application as set forth herein; (b) distribute the Publisher Materials including as part of the Content Sharing Services; and (c) access and query an Application as set forth in this Agreement, including without limitation to run any queries necessary to confirm Publisher's compliance with the terms and conditions of this Agreement or to implement any changes or updates to an Application as set forth in Article 3. In the event that Publisher wishes to exclude the Publisher Materials from any such promotion or distribution, Publisher shall notify Conduit via the "Contact Us" link which is available at its Publisher Account.
- Publisher will not attempt to interfere with or disrupt the Conduit Platform or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Conduit Platform for Publisher's own use as permitted herein). Except as expressly specified in this Agreement, Publisher will not: (a) use, copy, create derivative works of or modify the Conduit Platform or any part thereof; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Conduit Platform to any other person or entity; or (c) use the Conduit Platform or an Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. Publisher agrees not to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Conduit Platform or an Application or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
- PROMOTION AND MARKETING.
- Publisher may not issue any press release or any other marketing materials regarding this Agreement without Conduit’s prior written approval. Subject to Section 6.15, Publisher shall advertise and promote the Application(s) from the Publisher website and may, in addition, advertise and promote the Application(s) from Publisher’s other online or offline properties ("Publisher Promotion"). The Publisher Promotion from the Publisher website shall include a link to the Application(s) download page. In the event that an Application does not automatically include the notice "Powered by Conduit" ("Conduit Notice"), Publisher shall provide the Conduit Notice in a prominent and visible format in connection with any Publisher Promotion and where provided via a web page, Publisher will include a link to http://www.conduit.com/ in the Publisher Promotion. As an example, Publisher may satisfy the requirements of this Section using the following wording: "[Application name] Powered by Conduit".
- Publisher agrees that Conduit may: (a) feature an Application in different marketing outlets and/or collateral, including without limitation newsletters, case studies, email or advertisement campaigns and web pages; (b) indentify Publisher as a user of the Conduit Technology on Conduit websites, client lists, press releases, and in other marketing; and (c) publish a brief description and/or case study highlighting Publisher’s deployment of an Application and use of the Conduit Technology (each a "Conduit Promotion"). In the event that Publisher wishes to be excluded from a specific Conduit Promotion, Publisher shall notify Conduit in writing via the “Contact Us” link which is available at its Publisher Account. Unless otherwise agreed by parties, Publisher shall not be entitled to any compensation as a result of any Conduit Promotion.
- Subject to the terms and conditions of this Agreement, each party grants to the other party a limited, worldwide, non-sublicensable, non-exclusive license to use the other party’s Marks solely to engage in the marketing and promotional activities set forth in this Agreement. "Marks" mean trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered. Any use by one party of a Mark of the other party must be in accordance with applicable law and with respect to Conduit, solely in accordance with Conduit’s Trademark Policy. Each party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from such party’s use of a Mark of the other party as permitted hereunder will inure solely to the benefit of the other party.
- PUBLISHER UNDERTAKING.
- Publisher represents and warrants that the Publisher Materials do not contain, distribute or promote any Prohibited Activity or any Content that may be regarded as Prohibited Activity. In addition, Publisher shall not, nor shall it allow any other person or entity to: (a) create, distribute, promote or use an Application by any means that constitute as Prohibited Activity; and (b) use in connection with an Application or the Conduit Platform any Content generated by any other person or entity which is engaged in any Prohibited Activity.
- The term "Prohibited Activity" means: (a) any activity or use of Content that (i) encourages conduct that would be considered a criminal offense or could give rise to civil liability, or violates any applicable law, regulation or order of any court or tribunal including, but not limited to, collecting, using or disclosing personal information from any individuals in violation of applicable law, including without limitation personal information of minors in violation of applicable law, including, without limitation, the Children's Online Privacy Protection Act of 1998; (ii) violates, misappropriates, or infringes any third party (including, without limitation, End Users) Intellectual Property Rights, rights of privacy and publicity, or other proprietary or legal rights; (iii) materially interferes or disrupts Web navigation or browsing; (iv) involves rewards programs or actual monetary exchanges, without Conduit's express written approval ; or (v) enhances or modifies Web pages (and/or Content on such Web pages) visited by End Users and controlled by third parties without the End Users' prior consent and without Conduit's express written approval; (b) usage which adversely affects public or private infrastructure or equipment; (c) installation or un-installation of an Application that are generated without an accurate and conspicuous disclosure and without informed and active consent or any other similar practices; (d) Fraudulent Activity (defined below); (e) use, endorsement, and/or promotion of Content which: (i) is, promotes or advocates pornographic, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, gambling-related, or discriminatory activity, promotes illegal drugs or arms trafficking, violates export control laws, creates a risk to a person's safety or health, compromises national security or interferes with an investigation by law enforcement officials, or is offensive, misleading or deceptive material or is any type of malware; (ii) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; or (iii) contains excessive or inappropriate advertisements as determined by Conduit in its sole discretion; (f) using an Application or the Conduit Technology to offer, distribute or promote any web browser application that is substantially similar to the Application; (g) redirecting traffic or replacing web pages available with an Application to web pages which promote Content or products which may adversely affect use of the Application and/or violate any of the prohibitions contained herein; or (h) violating Conduit’s Third Party Guidelines available at: http://www.conduit.com/legal/Third-Party-Guidelines.aspx, which are incorporated herein by reference.
- Publisher represents and warrants that it shall not, and shall not allow any third party to: (i) engage in any Prohibited Activity in connection with or pertaining to an Application or the Conduit Platform; (ii) use an Application in any manner that constitutes Prohibited Activity; (iii) add to, post or make available via an Application or the Conduit Technology any Prohibited Activity; or (iv) distribute an Application from a website that offers, distributes or promotes Prohibited Activity or as part of a promotion that includes Prohibited Activity. In the event that Prohibited Activity pertaining to any Application is detected, Publisher shall immediately remove and resolve such Prohibited Activity.
- Without limiting any other terms of this Agreement, Publisher acknowledges and agrees that at any time during the Term, Conduit has the right, at its sole discretion (without notice to Publisher) to: (a) remove Prohibited Activity from an Application or the Conduit Platform; (b) take any measures needed to prevent or correct Prohibited Activity (including, without limitations, upon receipt of claims, allegations from third parties or authorities relating to such Content); (c) assist any governmental agency or other applicable legal authorities with respect to any Prohibited Activity that was detected in or made available via an Application or the Conduit Platform; and/or (d) report any Prohibited activity to any governmental agency or other applicable legal authority with respect to any Prohibited Activity.
- Publisher shall not engage in and shall not encourage any other person or entity (including, without limitation and as applicable, End Users) to engage in Fraudulent Activity in connection with an Application or the Conduit Platform. Without limiting any other terms of this Agreement or other remedies available to Conduit, in the event that Publisher or any other third party engages in any Fraudulent Activity, Conduit shall have the sole and exclusive right to disable an Application, suspend the Publisher Account or take any other applicable measures at its sole discretion.
- The term "Fraudulent Activity" means any of the following activities: (a) fictitious installations of an Application; (b) installing or uninstalling any program (including, without limitation, an Application) on an End User’s computer, without the End User’s prior consent or any other similar practices; (c) automated, deceptive, fraudulent or other invalid searches in any Web Search Feature that may be available via an Application, including without limitation in the web-search result pages, or searches for any purpose other than organic retrieval of information and web browsing in good faith; (d) automated and/or fraudulent clicks on: ads, sponsored links, sponsored search results, Application components, or such clicks for purposes other than retrieval of information in good faith; (e) initiating or using a promotion in connection with an Application which violates any applicable law or regulation, or an existing agreement between Publisher and Conduit or which is not consistent with industry standards and good practices; (f) hacking an Application or the Conduit Platform or any part thereof, or using an Application or the Conduit Platform in order to hack into public or private infrastructure or equipment; (g) using in connection with an Application or the Conduit Platform any material that contains software viruses or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment; or (h) encouraging an End User to use any Web Search Feature that may be available via an Application or to perform web-searches therein by pre-populating search terms in any such search feature.
- The EULA will be included in any Application installation package. Publisher shall: (a) abide by the EULA; (b) use its best commercial efforts to ensure that the End Users comply with the terms of the EULA; and (c) inform Conduit promptly of any known violation or breach thereof. Publisher shall not: (i) modify or change any of the terms contained in the EULA; (ii) distribute an Application to End Users without making the EULA available to End Users or interfere with the provision of the EULA to End Users; or (iii) circumvent the requirement that the End Users accept the EULA as part of an Application installation process. The foregoing is a material obligation of Publisher hereunder.
- Publisher may elect to also include terms and conditions or an end user agreement with an Application that will govern use of its Publisher Materials ("Application Terms"). In the event that Publisher does so, Publisher acknowledges and agrees that: (a) Publisher is solely responsible for provision of its Application Terms to End Users and for obtaining valid assent to its Application Terms from End Users; (b) such Application Terms will not be inconsistent with the terms of the EULA and must comply with all applicable laws in all countries where End Users can access an Application; (c) Publisher will make no representations, warranties or enter into any agreements on behalf of Conduit in such Application Terms; and (d) the Application Terms are an agreement between Publisher and the End User and Conduit is not a party to that agreement. Furthermore, Conduit will not be responsible for, nor have any liability with respect to: (x) any agreement between Publisher and an End User or an End User’s breach of the Application Terms; or (y) Publisher’s failure to provide any Application Terms and/or to obtain valid assent to any Application Terms from End Users.
- Publisher will not use the Conduit Platform or an Application to offer, display, distribute, transmit, route, provide connections to or store any Content or any other material that infringes copyrighted works or otherwise violates or promotes the violation of the Intellectual Property Rights of any third party. Conduit has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. The Conduit Copyright Policy is available at http://www.conduit.com. In compliance with the safe harbor provision(s) of the Digital Millennium Copyright Act of 1998 ("DMCA"), Conduit reserves the right to take down any and all Content posted via use of the Conduit Platform or an Application at any time in its sole discretion. Without limiting other provisions herein, Publisher agrees to assist Conduit with any such compliance activities. Without limiting any other terms of this Agreement, if an Application allows End Users to offer, display, distribute, transmit, route, provide connections to or store any material or includes services through which other users can do the same, Publisher will: (i) adopt a policy that complies with the eligibility requirements for the DMCA safe harbors; (ii) reasonably enforce and implement said policy; and (iii) satisfy all other DMCA requirements for safe harbor eligibility, including, but not limited to, responding expeditiously to remove, or disable access to, material that is claimed to be infringing or to be the subject of infringing activity upon receipt of notification of claimed copyright infringement from us or a third party, as required by the DMCA.
- Publisher shall abide by and comply with the Conduit Privacy Policies with respect to and in connection with Publisher's use of the Conduit Platform and an Application. Publisher represents and warrants that it shall: (a) not use the Conduit Platform or an Application in any manner that may harm the privacy rights of End Users or other third parties, (b) use any affiliate network in connection with the distribution of any Application or any apps embedded in any Application unless such use is in compliance with the Conduit’s policies available at http://www.conduit.com, and (c) not collect, transmit, copy, use or commercialize in any manner any End User personally identifiable information. Publisher agrees that: (a) the Publisher’s website privacy policies and/or any activities undertaken by it will not be inconsistent with the terms of the Conduit Privacy Policies as applicable to an Application; (b) Publisher will make no representations, warranties or agreements on behalf of Conduit in the Publisher privacy policies; and (c) Conduit will not be responsible for, nor have any liability with respect to: (x) any agreement between Publisher and an End User or an End User's breach of the Publisher privacy policies; (y) Publisher's failure to provide any Publisher privacy policies and/or to obtain valid consent to any Publisher privacy policies from End Users; or (z) Publisher’s failure to comply with the terms and conditions of the Publisher’s privacy policies.
- Publisher shall not utilize the Conduit Platform, an Application or any Application component to create a security hole or to pose any kind of security threat to the End Users or any third party ("Security Breach"). A Security Breach may include, without limitation, creation, distribution, use or delivery of any of the following: spyware, programs designed to hijack cookies or stuff cookies (i.e. “parasiteware”), adware, programs designed to send unsolicited advertisements (i.e. "spamware"), viruses, services that send unsolicited advertisements, programs designed to hijack computers or hack into computers, malicious/exploiting of Content or components, programs designed to gain unauthorized access to networks on the Internet or private equipment of infrastructure and any other type of malware.
- In the event that a Security Breach or a violation of privacy rights is detected by Publisher or reported to Publisher, Publisher shall immediately remove, fix or resolve the Security Breach or privacy violation and inform the End Users and Conduit about such Security Breach or privacy violation and its applicable remedy.
- Unless Publisher receives Conduit’s prior written approval, Publisher shall not use in connection with an Application or any part thereof any privacy-or safety-related certification seal or mark that is hosted, obtained or provided by Conduit or by Conduit partners as part of the Conduit Technology or in connection with use of the Conduit Technology. If the Publisher Materials include any End User tracking capabilities (by way of example only, capabilities similar to those included in the definition of “Tracking Software” at: http://www.truste.com/privacy_seals_and_services/enterprise_privacy/definitions.html), then Publisher represents and warrants that it shall strictly abide by Conduit’s requirements of proper disclosure to End Users and/or other guidelines with respect to usage of advance APIs as part of the Conduit Platform (such requirements may be published by Conduit from time online at http://www.conduit.com/privacy and/or via email newsletters, including without limitation the guidelines published here: http://www.conduit.com/Privacy/content-policy.aspx), which are incorporated herein by reference.
- Publisher shall not distribute or promote an Application by bundling or integrating an Application installation file with any other application or software or as a part of a package of software or any other application without obtaining Conduit’s prior written approval. For the avoidance of doubt, the foregoing stipulation includes the distribution or promotion of an Application by integrating an Application installation process with any web registration procedure.
- Use of the Conduit Platform is currently provided free of charge but may not always be free of charge. Publisher acknowledges and agrees that it will not receive any compensation or cash payment from Conduit in connection with this Agreement or otherwise (including, but not limited to as the result of the creation, implementation or administration of an Application), unless explicitly agreed to by Conduit.
- Publisher acknowledges and agrees that in addition to compliance with this Agreement and all the Conduit policies incorporated herein, any distribution of an Application on or from any third party websites and/or services (the “Third Party Services”) shall be subject to the respective terms and conditions maintained by the Third Party Services (by way of example only, such Third Party Services may include, Mozilla Firefox add-on gallery or the Apple Store). Conduit is not responsible for any Third Party Services or use thereof. Additionally, unless Publisher receives Conduit’s prior written approval, Publisher shall not alter or modify an Application or permit or authorize a third party to do so.
- PROPRIETARY RIGHTS.
- Except as expressly granted in this Agreement, as between Publisher and Conduit, Conduit retains all right, title and interest in and to the Conduit Platform, Conduit’s Marks and the TPC Marks (except for the Publisher Materials) and any derivatives thereof, including any Intellectual Property Rights therein(collectively, the “Conduit IP”). As between Conduit and Publisher, all use of the Conduit IP shall inure to the benefit of Conduit and Publisher shall not: (y) contest, or assist others to contest, Conduit’s rights or interests in and to the Conduit IP or the validity of Conduit’s rights in and to the Conduit IP and all applications, registrations or other legally recognized interests therein, or (z) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to said Conduit IP. All rights in the Conduit IP which are not expressly granted herein are reserved by Conduit. Publisher will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the Conduit Platform and Application.
- Except as expressly granted in this Agreement, as between Conduit and Publisher, Publisher retains all right, title and interest in and to the Publisher Materials and its Marks, and any derivatives thereof, including any Intellectual Property Rights therein.
- Publisher shall not assert any Intellectual Property Rights with respect to the Conduit Platform or any element, derivation, adaptation, variation or name thereof. Except as set forth in Article 5 above, an Application shall not include and/or be promoted using any Intellectual Property Right of Conduit or its authorized third-party licensors, unless and to the extent that Conduit adds its own button, logo or any other branded element to an Application or unless otherwise provided in this Agreement.
- Publisher shall not remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on any Content provided by Conduit, whether available via an Application or otherwise.
- During the Term, Publisher may have access to certain non-public, proprietary, confidential and/or trade secret information of Conduit, whether written or oral, 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"). Publisher agrees: (i) not to disclose any of Conduit's Confidential Information to any third parties; (ii) not to use any of Conduit’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; and (iii) to keep Conduit’s Confidential Information confidential using the same degree of care Publisher uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care.
- At any time during the Term, upon the written request of Conduit, Publisher shall return to Conduit, or destroy, in accordance with Conduit’s written instructions, all of Conduit's Confidential Information in its possession, including any writing or recordings whatsoever prepared by Publisher based upon Conduit's Confidential Information, and Publisher shall provide Conduit with a written certificate, signed by an authorized officer of Publisher, evidencing the complete and full execution of the provisions of this Article 8.
- Unauthorized disclosure or use of Conduit's Confidential Information may give rise to irreparable injury, which may not be adequately compensated by damages. Publisher agrees and acknowledges that money damages are not a sufficient remedy for any breach of this Agreement by the Publisher and that Conduit shall be entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach thereof, in addition to any other remedies available at law or in equity.
- Publisher acknowledges and agrees that Conduit may provide to the applicable authorities or any court of competent jurisdiction information contained in or related to the Publisher Account in the event that Conduit is required by legal process, order of any court of competent jurisdiction, or any applicable law, rule or regulation to provide such information.
- Publisher shall keep in strict confidence and shall not disclose to any third party any of Conduit's Confidential Information during the Term hereunder and for a period of three (3) years following the termination of this Agreement.
- REPRESENTATIONS AND WARRANTIES.
- By Conduit. Conduit represents and warrants that it will use commercially reasonable efforts to perform its obligations hereunder. Conduit is not responsible for and does not provide any warranty with respect to any Content (including, without limitation, Content part of an Application, TPC, End User Content or Publisher Materials) or any third-party sites that can be linked through the Conduit Platform or an Application. Further, Conduit does not guarantee that any Content (including, without limitation, TPC, End User Content or Publisher Materials) will be made available through an Application, the Conduit Platform, continuously or at all. WHILE CONDUIT IS UNDER NO OBLIGATION TO DO SO, WITHOUT LIMITING ANY OTHER TERMS OF THIS AGREEMENT, CONDUIT RESERVES THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM ANY APPLICATION WITHOUT NOTICE IN THE EVENT SUCH CONTENT IS PROVIDED IN VIOLATION OF THE TERMS OF THIS AGREEMENT. Conduit does not have any obligation to monitor the End User Content or the Publisher Materials that are uploaded, posted, submitted or otherwise transmitted using an Application or otherwise, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the End User Content, Publisher Materials or anything said, depicted or written by Publishers or End Users, including, without limitation, any information obtained by using any Application. Conduit does not endorse any End User Content or Publisher Materials or any opinion, recommendation or advice expressed therein and Publisher agrees to waive, and hereby does waive, any legal or equitable rights or remedies Publisher has or may have against Conduit with respect thereto. Conduit does not make any representation with respect to so-called “open source” or free software that may be included in the Conduit Platform. Any open source software that may be accompanying the Conduit Technology is licensed to you in accordance with the applicable open source license or copyright notice accompanying such open source software and Conduit hereby disclaims any and all liability to you or any third party related thereto. THE CONDUIT PLATFORM AS WELL AS ANY APPLICATIONS ARE PROVIDED BY CONDUIT "AS IS". EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULLEST EXTENT ALLOWABLE BY LAW, CONDUIT MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT, OR THOSE ARISING IN THE COURSE OF OR CONNECTED TO THE PERFORMANCE HEREUNDER, AND DISCLAIMS SUCH WARRANTIES. IN ADDITION, CONDUIT DOES NOT REPRESENT OR WARRANT THAT: (I) THE CONDUIT PLATFORM OR ANY OF ITS PRODUCTS, SERVICES OR SOFTWARE WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE CONDUIT TECHNOLOGY OR ANY OF ITS PRODUCTS, SERVICES OR SOFTWARE WILL BE UNINTERRUPTED; (III) PUBLISHER WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM PUBLISHER’S USE OF THE CONDUIT PLATFORM OR ANY APPLICATION; OR (IV) ANY APPLICATION OR ANY CONTENT WILL BE MADE AVAILABLE VIA THE CONDUIT PLATFORM OR OTHERWISE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
- Publisher (the "Indemnifying Party") shall defend, hold harmless, and indemnify Conduit, and/or its subsidiaries, affiliates, directors, officers, employees, agents , successors and permitted assignees (collectively "Indemnified Party"), from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities of any kind, (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or filed (collectively, "Claims") brought or made by any third party against the Indemnified Party arising out of: (a) a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under this Agreement; (b) any use of the Conduit Platform or an Application in any manner inconsistent with or in breach of this Agreement; (c) violation of End User’s privacy rights or the creation of a Security Breach by Publisher; or (d) the End Users' use of an Application.
- The Indemnified Party shall: (a) promptly notify the Indemnifying Party of such Claim; provided that a failure to give such prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Article, (b) provide the Indemnifying Party, at the cost of the Indemnifying Party, with reasonable information, assistance and cooperation in defending the lawsuit or Claim, and (c) 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 approval and provided further that Indemnified Party shall not be required to allow Indemnifying Party to assume the control of the defense of a Claim to the extent that Indemnified Party determines that (i) such claim relates to any Conduit Technology, (ii) any relief other than monetary damages is sought against Indemnified Party, (iii) there may be a conflict of interest between the Indemnifying Party and Indemnified Party in the conduct of the defense, or (iv) 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 Indemnified Party, and in such events the costs of defense will be considered "Claims" as defined above. The Indemnified Party may join in the defense of such Claim with counsel of its choice at its own expense.
- LIMITATION OF LIABILITY.
IN NO EVENT WILL CONDUIT AND ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO PUBLISHER OR ANY THIRD PARTY 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 THE INSTALLATION OR USE OF OR INABILITY TO USE THE CONDUIT PLATFORM OR AN APPLICATION UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT CONDUIT OR ITS THIRD PARTY LICENSORS WERE 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 CONDUIT’S OR ITS THIRD PARTY LICENSORS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED FIVE HUNDRED DOLLARS (US $500.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
- TERM AND TERMINATION.
- This Agreement shall commence on the date Publisher agrees to the terms and conditions of this Agreement as set forth above and shall continue in force thereafter, unless terminated as provided herein (the "Term").
- Either party may terminate this Agreement upon five (5) days' prior written notice to the other party for any reason and without liability for such termination.
- Conduit may immediately suspend the Publisher Account or terminate this Agreement and disable an Application, in any one of the following instances: (a) if Publisher breaches any obligation, representation and/or warranty contained in this Agreement; (b) if Publisher engages in any acts prohibited by this Agreement; (c) if Publisher engages in any action that, in Conduit’s sole discretion, reflects poorly on Conduit or otherwise disparages or devalues Conduit’s reputation or goodwill; (d) if Publisher 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 administration 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. If Publisher becomes subject to any of the events described in this clause (e) it shall immediately notify Conduit in writing; or (f) if Conduit reasonably determines that it is commercially impractical for Conduit to continue supporting an Application and the Conduit Platform under the terms of this Agreement as a result of legal, business or technical considerations.
- Upon the termination of this Agreement for any reason: (a) all rights and licenses granted hereunder by each party shall cease immediately, provided, however, that in the event that Publisher Materials remain in an Application, Conduit shall have the right to transmit, display or modify such Publisher Materials for as long as an Application is in use by any End User; (b) Publisher shall promptly return to Conduit, or destroy and certify the destruction of, all of Conduit’s Confidential Information, in accordance with Section 8.2; (c) Publisher’s rights to use the Conduit Platform or any part thereof in connection therewith and an Application, as permitted under this Agreement, shall cease immediately; (d) Publisher shall immediately cease using the download link to any Application; and (e) Conduit shall have the exclusive right to modify an Application or remove any Application from the Conduit Technology and/or disable any Application. Conduit will not be liable to Publisher or any third party for termination of this Agreement or termination of Publisher’s access to the Conduit Technology or an Application. UPON ANY TERMINATION OR SUSPENSION, ANY PUBLISHER MATERIALS OR INFORMATION WHICH IS RELATED TO THE PUBLISHER ACCOUNT MAY NO LONGER BE ACCESSED BY PUBLISHER. Furthermore, Conduit will have no obligation to maintain any information stored in its data centers related to the Publisher Account or to forward any information to Publisher or any third party.
- Following the termination of this Agreement, any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination of this Agreement (including Articles 1, 6, 7, 8, 9, 10, 11 and 13 and Section 3.3, 3.4 and 3.5. 5.2, and this Section 12.5), shall be deemed to survive for as long as necessary to fulfill such purposes.
- This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any other prior or collateral agreements with respect to the subject matter hereof, whether oral or written.
- Publisher may not assign its rights and/or delegate its obligations under this Agreement without Conduit’s prior written consent. This Agreement shall be binding on and inure to the benefit of each of the parties and their respective successors and assignees. This Agreement is not made for the benefit of any third party who is not a party hereto, 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.
- This Agreement will be governed by and construed under the laws of the State of New York, excluding its conflict of law rules and principles, and applicable federal U.S. laws shall govern this Agreement. Each party agrees to submit to the personal 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. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
- Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
- If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.
- 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.
- 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.
- All notices required or permitted under this Agreement shall be in English and in writing and shall be delivered (a) to Conduit - by facsimile, e-mail or other electronic means, by registered or certified mail (postage prepaid) or by overnight courier service, at the address set forth in Paragraph 1 of this Agreement or at such other address as Conduit shall have furnished to Publisher in writing. A notice shall be deemed 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, and (b) to Publisher - to the e-mail address provided by Publisher in connection with its Publisher Account. For purposes of the foregoing, Conduit shall be permitted to rely upon the e-mail address provided by Publisher to Conduit as provided above and shall not be responsible for delays in the delivery of e-mails which delays are not associated with Conduit’s mail server.
Last updated: March 28, 2012