Terms of use

LICENSE & SERVICES AGREEMENT

BY FILLING IN YOUR DETAILS AND\OR BY CLICKING "I AGREE" YOU ARE AGREEING TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT. This License and Services Agreement (the "Agreement") is made and entered by and between inneractive Ltd., a company incorporated under the laws of Israel, having its principal place of business at: 7 Imber St. Kiryat Arye, Petach Tikva,Israel; ("IA"), and you (“Publisher"). (Each a “Party” and, collectively, the “Parties”).

WHEREAS inneractive has developed certain proprietary technology, know-how and systems enabling the inclusion and optimization of advertisements into mobile content using personalization rules (the "Technology"), and owns certain trademarks and associated goodwill ("inneractiveMarks"); and WHEREAS Publisher has developed, and it is the owner and distributor of certain games or apps (the "Content").

WHEREAS Subject to the terms and conditions of this Agreement, the parties wish to enter into this Agreement that will allow inneractive to optimize, serve and place certain advertisements (“Advertising”) from third party advertising networks (“Advertisers”) in the Content, using the Technology licensed to Publisher, during the Term specified below.

NOWTHEREFORE, in consideration of the premises and the undertakings of the Parties herein contained, it is agreed as follows:

1.Services

1.1.Subject to the terms and conditions of this Agreement, inneractive hereby agrees to provide a service to Publisher, whereby inneractive will deliver Advertising, using the Technology licensed to Publisher, to the Content, during the Term (the “Service(s)”).

1.2. The Service, as provided to Publisher, may include, among other things, standard advertising management services, such as ad serving, trafficking, campaign management and the compilation of relevant statistical data. Advertising served to and placed on the Content.

1.3.inneractive 's obligations under this Agreement shall be to (i) provide the Service enabling tags to Publisher, (ii) serve, optimize and deliver Advertising to the Content, and (iii) provide access to inneractive‘s' statistics and reporting in respect to the use of the Content.

2.Non Exclusive License Grant & Restrictions

2.1.Subject to the terms and conditions of this Agreement, inneractivehereby grants the Publisher a non-transferable, non-exclusive license to deploy and usethe Technology in the Content.For the absenceof doubt, Publisher is permitted to make use of the Technology only for the purpose of this Agreement, and use Technology solely for the exclusive Advertising served to and placed on the Content by inneractive.

2.2.Publisher shall not, and shall not allow any third party to, and not to permit or authorize others to : (i) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Technology by any means whatsoever; (ii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the Technology to or for the benefit of third parties, except as specifically licensed hereunder; (iii) remove inneractiveMarks, or any identification, or proprietary or copyright restrictions from the Technology; (iv) copy, modify, incorporate into or with other Technology, or create a derivative work of any part of the Technology; (v) use similar processes and functions to develop competing products or to maintain interoperability between products, or any part thereof; or (vi) develop methods to enable unauthorized parties to use the Technology.

3.Publisher Responsibilities

3.1.Publisher shall be responsible for quality assurance (QA) test all on its own expenses (not including the Advertising QA).

3.2.Publisher shall use commercially reasonable efforts to provide even and consistent distribution of Advertising on the Publisher Content and shall immediately inform inneractive of any Publisher action that will increase or reduce expected advertising inventory on the Publisher Content.

3.3.Publisher shall not alter, modify or otherwise interfere with the operation of any of the Advertising or any link contained within any click-through Advertisement. Publisher shall promptly notify inneractive if Publisher suspects that any third party may be tampering with, abusing or manipulating the Technology or the Advertising on the Content. In the event of misuse and/or abuse of Technology or Advertising by Publisher, Publisher shall not be entitled to any revenue associated with the applicable campaign(s). Publisher acknowledges and agrees that inneractive shall, in its sole discretion, regularly review impressions, click-through or other actions with respect to Advertising. No revenue share will become due to Publisher for actions that inneractive determines, in its sole discretion, are fraudulent or improper. In addition, inneractive reserves the right to terminate this Agreement immediately, without giving Publisher an opportunity to cure, if inneractive reasonably determines that Publisher has in any way manipulated or used artificial means to increase impressions, click-through or other actions, or has encouraged or authorized others to do so.

4.Fees and Payments

4.1.During the Term of this Agreement, inneractive shall be entitled to retain thirty five percent (35%) of all Net Revenues actually collected by inneractive in connection with any and all Advertising delivered by inneractive to the Content through the Technology. The Advertisers usually pay inneractive the Net Revenues in respect to the Advertisements within 60 days after the end of each month (the "Receipt Date"). inneractive shall deliver to Publisher the remaining sixty five percent (65%) of such Net Revenues within seven (7) days after the Receipt Date. The term “Net Revenues” shall mean actual collections from Advertisers made by inneractive, not including any third party commissions, taxes, rebates, refunds, make-goods and/or other set-offs of any kind, if any.

4.2. inneractive shall be responsible for all invoicing, billings and collections from Advertisers. The revenues payment will be made to the Publisher by wire transfer in the same currency in which inneractive received its revenues from the Advertisers. In the event a currency other than USD or multiple currencies are involved in the calculation of a payment (or any part thereof), inneractive may, at it sole discretion, convert such payment to a single appropriate currency using foreign exchange currency rates (less 5%) as published by www.oanda.com(or any such website or service which replaces it and which the pay per click industry recognizes as a standard) at the time the payment is calculated by inneractive.

4.3.Each Party shall bear its own expenses (including but not limited to any tax obligations) relating to the activities and payments received under this Agreement. All sums payable under this Agreement are exclusive of VAT.

4.4.Notwithstanding the foregoing, if the total amount payable under Section 4.1 is less than two hundred Euros (€200), IA shall have the right to withhold payment until the next regularly scheduled payment date on which the amount payable to Publisher equals or exceeds two hundred Euros (€200).

4.5.inneractive shall have no obligation to pay Publisher any payment or payments earned through invalid activity; any payments relates to: (i) payments in respect of which inneractive has not itself received payments from relevant third party, including Advertises, (ii) payment which represent net adjustments downwards for whatever reason made to inneractive.

5.Intellectual Property & Ownership

5.1.All rights, title and interest of either party in its respective products, services, and intellectual property shall be held by such party and noting in the license granted above to be considered as a waiver of each party on any of is intellectual property rights. Except as specifically set forth in this Agreement, neither party is granted any right or interest or license to the intellectual property, know-how, trademarks, marks or trade names of the other party.

5.2.For avoidance of all doubts, inneractive is the exclusive supplier of the Technology, and the exclusive owner of all right, title and interest in and to the proprietary mobile advertising technology used by inneractive to deliver the Adverting and related services. In addition, inneractive is the exclusive owner of all right, title and interest in and to all software, databases and other aspects and technologies related to the Technology, and any enhancements thereto. Publisher shall not use the Technology, except pursuant to the limited rights expressly granted and as specifically set forth in this Agreement. Publisher acknowledges that inneractive shall retain all proprietary rights in the Technology (including all software, source codes, modifications, updates and enhancements thereof), inneractive Marks, or any derivatives thereof, and any other trademarks and logos which are owned or controlled by inneractive and made available to Publisher under this Agreement.

6.Term & Termination

6.1.The parties agree that this Agreement commences on the Effective Date hereof and shall be in effect for a period of 1 year (the "Term"), unless otherwise terminated in accordance with Section 6.2 below. Thereafter, this agreement shall be renewed automatically for additional periods of 1 year each (each, an "Extended Term". The term "Term" as used herein shall refer also to any Extended Term), whereby any party may deliver to the other party a written non-renewal notice, 60 days prior to the end of the Term or any Extended Term, in which case this Agreement shall be terminated at the end of such Term or any Extended Term, as applicable.

6.2.The Agreement may be terminated as follows: Either Party may terminate this Agreement for convenience upon 60 days prior written notice. Either Party may terminate this Agreement hereunder for default if the other Party: (i) Materially breaches this Agreement; provided, however, no right of default shall accrue until thirty (30) days after the defaulting Party is notified in writing of the material breach and has failed to cure or give adequate assurances of performance within the thirty (30) day period after notice of material breach; (ii) The other Party becomes the subject of a voluntary or involuntary proceeding concerning insolvency, receivership, liquidation, or composition for the benefit of creditors, if such proceeding is not eliminated within Sixty (60) days of proceeding commencement.

6.3.Any and all provisions or obligations contained in this Agreement which by their nature or effect are required or intended to be observed or performed after termination of this Agreement will survive the expiration or termination of this Agreement and remain binding upon and for the benefit of the parties, their successors and permitted assigns.

7.Warranty & Indemnification

7.1.Publisher agrees that it shall be solely and exclusively responsible for the Publisher Content, and that inneractive has no responsibility, other than with respect to Technology, under the terms of this Agreement, to review or approve the Content. Publishershall be responsible and warrant that Content shall not and does not: (a) infringe third party’s rights, especially copyrights or trademarks, (b) contain pornographic, violent or seditious information or information that is unsuitable for children, (c) promote legal or illegal drugs that are not publicly attainable, and (d) contain viruses or similar programs that might harm data or computer systems.

7.2.Publisher will indemnify and hold harmless inneractive, its shareholders, directors and employees, from and against any and all loss cost, liability or expense (including, without limitation, reasonable attorneys' fees) which inneractive, its shareholders, directors and employees may suffer, incur or sustain resulting from or arising out of any and all claims brought by a third party to the extent such claims arise out of (i) infringements or alleged infringements by the Content of any third party Intellectual Property Rights, (ii) that the Content contains pornographic, violent or seditious information or information that is unsuitable for children, (iii) that the Content promotes legal or illegal drugs that are not publicly attainable, (iv) that the Content contains viruses or similar programs that might harm data or computer systems. In the event of claim inneractive will (i) promptly notify Publisher of such claim, (ii) allow Publisher to control the defense thereof and/or all related settlement negotiations in cooperation with IA, or (iii) reasonably cooperate with Publisher, at Publisher’s expense, in such defense and/or settlement. Notwithstanding the aforesaid, inneractive shall be entitled to appoint an Attorney on its behalf to monitor the defense and assist the Attorney appointed by Publisher.

8.Confidentiality

8.1. Each party agrees that all business, technical and financial information it obtains from the other party is the confidential property of the disclosing party (“Proprietary Information” of the disclosing party). Except as expressly allowed herein, the receiving party will hold in confidence and not use or disclose any Proprietary Information of the disclosing party. The receiving party shall not be obligated under this Section 8 with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without access to such Proprietary Information.

9.Limited Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR (I) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR (II) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. INNERACTIVE'S TOTAL, AGGREGATE LIABILITY TO PUBLISHER FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT IS LIMITED TO THE NET AMOUNT PAID TO PUBLISHER BY IA IN THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.

10.Miscellaneous

10.1.The parties are separate contractors and no employer-employee relations shall be established between the parties or between a party and the other party’s employees. The relationship between the parties is that of independent contractors. Neither party is an agent for the other, nor does neither party have any authority to make any contract, whether expressly or by implication, in the name of the other party, without that party’s prior written consent for express purposes connected with the performance of this Agreement. No joint venture or partnership (in the strict legal sense) is created or intended by this Agreement.

10.2.inneractive shall have the right to perform public relation to its Services and Technology and the availability of the Content. inneractive shall perform its public relations at its sole discretion Furthermore, inneractive may use Publisher’s name in its publications.

10.3.This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.

10.4.This Agreement may not be assigned by either Party without the prior written approval of the other Party other than in connection with merger of either party or sale by either party of all or substantially all of its shares or assets.

10.5.This Agreement may not be modified or amended except by a written agreement signed by the parties hereto.

10.6.This Agreement shall for all purposes be governed by and construed in accordance with the laws of Israel (without reference to its conflict of laws principles) and the competent courts of Tel Aviv shall have exclusive jurisdiction over any dispute hereunder.