This publisher agreement ("Agreement") is effective as of the registration date (the "Effective Date"), by and between asterPix, Inc. ("asterPix"), a Delaware corporation having a business office at 4340 Stevens Creek Blvd., Suite 191, San Jose, CA 95129 and the publisher ("Publisher"), a corporation having a business office at the address provided in the application.
WHEREAS, asterPix has developed and is continuing to develop certain software and technology for content discovery;
WHEREAS, Publisher hosts content for its End-Users (as defined below), and wishes to utilize the asterPix software and technology to enable discovery of such content;
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth below, asterPix and Publisher agree as follows:
1. DEFINITIONS
"asterPix Scripts" means the scripts, software, and other subject matter which asterPix provides to Publisher, for inclusion in the Publisher Equipment, in order to invoke the asterPix Service to enable content discovery on the publisher site.
"asterPix Service" means asterPix's service for automatically generating "Auxiliary Content" comprised of search queries that are adjacent to the content on any page.
2. USE OF THE ASTERPIX SERVICE
2.1 Publisher Activities Generally. Publisher shall incorporate the asterPix Scripts into the Publisher Equipment. Publisher shall use the asterPix Scripts in the manner specified by asterPix, and shall not use the asterPix Scripts in any manner not authorized by asterPix.
2.3 Registration and Additional Terms of Use. The parties acknowledge that access to and use of the asterPix Service is expressly conditioned on registration by an asterPix web site, and compliance with program policies and any additional terms of use which are made electronically available at or via such web site. asterPix may update its terms of use at any time at its discretion.
2.6 Prohibited Activities. Prohibited Activities. Publisher shall not permit access to or use of any asterPix-provided subject matter or service (including, without limitation, the asterPix Service) by any person or entity whom Publisher knows (or has reason to believe) intends to utilize such subject matter or service for: (a) knowingly propagating viruses, worms and the like; (b) attempting to gain unauthorized access to any computer accessible over a network; (c) engaging in any behavior, or providing any subject matter, that is obscene, hateful, defamatory or tortious; or (d) intentionally disrupting other users, network services, or network equipment. In connection with operating the asterPix Service, asterPix shall have the right to refuse to accept or process, or disable or remove access to, any content that asterPix considers obscene, hateful, defamatory, tortious, or otherwise unlawful or offensive, or that asterPix has reason to believe may infringe or misappropriate any intellectual property right of any third party. Publisher will promptly honor any request by asterPix to disable or remove access to such content in connection with operation of the asterPix Service. Publisher shall not directly or indirectly: (i) generate queries for, clicks on, or impressions of Auxiliary Content, via repeated manual clicks, or via robot-, software- or other automated-means; (ii) frame, minimize, adjust, remove, inhibit, or otherwise modify the manner in which Auxiliary Content is displayed to an End User except where authorized by asterPix; or (iii) engage in any action or practice which reflects poorly on asterPix or otherwise disparages or devalues asterPix's reputation or goodwill. Notwithstanding anything to the contrary, the rights under this Agreement expressly exclude any right to access any source code of the asterPix Service of any other subject matter or service provided or enabled by asterPix under this Agreement.
2.8 Termination of Availability to Certain Countries. If asterPix has reason to believe that the local laws, regulations, treaties or enforcement policies of any country will not adequately protect asterPix's intellectual property rights in or associated with an asterPix Service, asterPix may so notify Publisher and upon receipt of such notice Publisher will terminate any availability to the asterPix Service for such country.
2.9 Reservation of Rights. All rights not expressly granted to Publisher under this Agreement are reserved to asterPix. No rights other than those expressly granted herein may arise through implication or estoppel or otherwise.
4. REPRESENTATIONS, WARRANTIES, INDEMNIFICATION AND DISCLAIMERS
4.1 High Risk Activities. PUBLISHER ACKNOWLEDGES THAT THE SUBJECT MATTER AND SERVICES PROVIDED ORR ENABLED HEREUNDER (INCLUDING, WITHOUT LIMITATION, THE ASTERPIX SERVICE) MAY CONTAIN ERRORS AND ARE NOT DESIGNED OR INTENDED FOR USE IN ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, HEALTH- OR MEDICAL-RELATED EQUIPMENT, VEHICLE NAVIGATION APPLICATIONS, OR OTHER APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE PRODUCTS PRESENTS A MATERIAL RISK OF DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (COLLECTIVELY, "HIGH RISK ACTIVITIES"). PUBLISHER REPRESENTS AND WARRANTS THAT IT WILL NOT HOST, USE, OR PROVIDE THE SUBJECT MATTER AND SERVICES PROVIDED OR ENABLED HEREUNDER (INCLUDING, WITHOUT LIMITATION, THE ASTERPIX SERVICE) FOR HIGH RISK ACTIVITIES.
4.2 No Warranties. ALL SUBJECT MATTER AND SERVICES PROVIDED OR ENABLED BY ASTERPIX HEREUNDER (INCLUDING, WITHOUT LIMITATION, THE ASTERPIX SERVICE) ARE PROVIDED ON AN "AS IS" BASIS. TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, EXCEPT AS SPECIFIED IN THIS AGREEMENT, ASTERPIX (AND ITS ADVERTISING ENTITIES, AS THE CASE MAY BE) DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ASTERPIX MAKES NO GUARANTEE REGARDING THE LEVEL OF IMPRESSIONS OR CLICKS OF AUXILIARY CONTENT, THE TIMING OF DELIVERY OF SUCH IMPRESSIONS AND/OR CLICKS, OR THE AMOUNT OF ANY PAYMENT TO BE MADE TO PUBLISHER UNDER THIS AGREEMENT.
4.3 Indemnification by Publisher. Publisher shall defend and indemnify asterPix from and against any claims to the extent resulting from any: (a) breach by Publisher of any representation or warranty or other material term under this Agreement; (b) representation or warranty with respect to any asterPix-provided or -enabled service or subject matter (including, without limitation, the asterPix Service) made by Publisher beyond the warranties made by asterPix to Publisher under this Agreement; (c) any failure of Publisher to comply with any applicable law or regulation in the course of performing under this Agreement; or (d) any failure of Publisher, or its Customers, to possess the intellectual property rights or other clearances specified in Section 6.6.
4.4 Third Party Infringement. Should any subject matter or service (including, without limitation, the asterPix Service) provided or enabled by asterPix hereunder, or the use thereof, become, or in asterPix's opinion be likely to become, the subject of a claim of infringement or misappropriation of a third party's intellectual property right, asterPix at its option may: (a) procure the right to continue to use such subject matter or service; (b) replace or modify such subject matter or service to make it non-infringing or non-misappropriating; or (c) terminate the relevant portion(s) of such subject matter or service.
5. TERM AND TERMINATION
5.1 Term. Unless earlier terminated, this Agreement shall commence on the Effective Date and shall continue for an initial term of one (1) year thereafter, subject to automatic renewal for successive one (1) year renewal terms unless either party notifies the other party of its interest not to renew at least sixty (60) calendar days prior to the end of the initial or any renewal term, in which case this Agreement shall expire.
5.2 Termination. This Agreement may be terminated by either party, immediately upon written notice to the other party. The following shall survive expiration or termination of this Agreement: (1) any provision expressly stated to survive; (1) Articles or Sections 4.1, 4.2, 4.3, 5, 6, 7 and 8.
6. PROPRIETARY RIGHTS
6.1 Ownership. As between the parties, asterPix owns and shall retain all right, title and interest in and to the asterPix Service, and all intellectual property rights related therein.
6.2 Trademarks. Publisher acknowledges and agrees that: (a) asterPix owns and shall retain all right, title and interest in its/their respective names, logos, brands, and other trademarks, service marks and trade identifiers (collectively, "Trademarks"); (b) Publisher will not register (or apply to register) any such Trademarks; and (c) all use by Publisher with respect to such Trademarks will inure to the benefit of asterPix (or its Advertising Entities, as the case may be). Except as expressly set forth in this Agreement, no license or right is granted to Publisher to use or display any such Trademarks in any manner whatsoever.
6.3 No Modification. Publisher shall not remove, obliterate or modify any of the Trademarks or proprietary rights notices of asterPix, created or enabled or displayed by the asterPix Service.
6.4 No Reverse Engineering. Publisher agrees during and after the term of this Agreement not to alter, decompile, disassemble, reverse engineer, or otherwise attempt to discover source code underlying the asterPix Service, or create any Derivative Works based on the asterPix Services (all of the foregoing, collectively, "Reverse Engineering"). If Publisher acquires any intellectual property right arising out of any Reverse Engineering, Publisher hereby assigns such right to asterPix, and shall during and after the term of this Agreement perform any act necessary to perfect asterPix's title in the foregoing.
6.5 Third Party Infringement. Should any subject matter or service provided by asterPix hereunder (including, without limitation, the asterPix Service) become, or in asterPix's opinion be likely to become, the subject of a claim of infringement or misappropriation of a third party's intellectual property right, asterPix at its option may: (a) procure the right to continue to host the asterPix Service; (b) replace or modify the asterPix Service to make such asterPix Service non-infringing or non-misappropriating, provided that substantially similar functionality and performance is obtained with the replacement or modified asterPix Service; or (c) terminate the relevant portion(s) of the asterPix Service.
7. LIMITATION OF LIABILITY
7.1 LIMITATION. ASTERPIX'S LIABILITY TO PUBLISHER FOR ANY CLAIM RELATING TO THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT OR ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNT PAID BY PUBLISHER TO ASTERPIX FOR THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. ASTERPIX'S AGGREGATE LIABILITY TO PUBLISHER FOR ALL CLAIMS RELATING TO ANY ASTERPIX SERVICE UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT OR ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY PUBLISHER TO ASTERPIX UNDER THIS AGREEMENT.
7.2 DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, USE, DATE OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER FOR BREACH OR TERMINATION OF THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. CONFIDENTIALITY
8.1 Confidential Information. During the term of the Agreement, Publisher may be exposed to information which is proprietary or confidential to asterPix (or its Advertising Entities) ("Confidential Information"). For example and without limitation, Confidential Information includes information concerning asterPix's business, technologies, products, customers, and finances. During and after the term of this Agreement, Publisher shall not use any such Confidential Information except in accordance with this Agreement, and shall not disclose any such Confidential Information to any third party without the prior written consent of asterPix.
8.2 Exceptions. The provisions of Section 8.1 shall not apply to any information to the extent it: (a) was in Publisher's possession (without restrictions on confidentiality) prior to Publisher learning of it hereunder; (b) was generally known to the public prior to Publisher learning of it hereunder, or becomes so known subsequent to Publisher learning of it hereunder, through no fault of Publisher; or (c) was independently developed by Publisher without the benefit of any Confidential Information. In addition, Publisher may make any disclosure required by law to a court or other governmental body of competent jurisdiction, provided that Publisher provides AsterPix with sufficient advance notice of the proposed disclosure in order to enable asterPix to oppose such disclosure and/or seek a protective order with respect thereto.
9. GENERAL PROVISIONS
9.1 Notices. All notices required or permitted under this Agreement shall be in writing and shall be either delivered personally, sent by airmail, sent by facsimile with acknowledgement of receipt from the receiving facsimile machine, or sent by email with a confirmation copy sent by airmail or courier within one (1) week, to the other party as follows:
If to asterPix: asterPix, Inc.
4340 Stevens Creek Blvd., Suite 191
San Jose, CA 95129
U.S.A.
Email: inquiries@asterpix.com
If to Publisher: We will use the contact information entered during registration.
Either party may change the address or facsimile number to which notices are to be delivered or sent by written notice to the other party.
9.2 Commerce Control Laws. Publisher acknowledges that asterPix Services and technical data are subject to U.S. export and other commerce control laws and regulations, and may be subject to export or import laws and regulations in other countries. Publisher acknowledges that it has the responsibility to obtain all licenses as may be required to export, re-export or import asterPix Service or technical data made available to Publisher under this Agreement. Publisher agrees not to export, re-export or import the asterPix Service or technical data related to it, except as permitted by, and in strict compliance with, all such laws and regulations. Without limiting the generality of the foregoing, Publisher shall in no event export or re-export any asterPix Service to any person on the U.S. government's "Denied Persons List" (currently available at http://www.bis.doc.gov/DPL/thedeniallist.asp) or to any other prohibited location or entity that may in the future be prohibited by the U.S. government. asterPix reserves the right to revoke or limit the use of the asterPix Services by any entity whose access thereto would violate any export regulation of the U.S. government, and Publisher shall fully cooperate with asterPix in the foregoing.
9.3 Transferability. Publisher may not assign any of its rights, or delegate any of its obligations, under this Agreement without the prior written consent of asterPix, and any such attempted assignment, delegation or transfer shall be voidable by asterPix. asterPix may transfer this Agreement in connection with a merger or acquisition of substantially all of its business, assets or equity relating to the subject matter hereof.
9.4 Governing Law and Dispute Resolution. This Agreement shall be construed and governed by the laws of the State of California, without regard to conflict of law (or choice of law) principles. If Publisher is domiciled in or conducts business in (including, without limitation, serving Customers or End Users in) the United States, Publisher hereby agrees to venue in, and jurisdiction of, the state and federal courts of Santa Clara County, California for all purposes relating to this Agreement. If Publisher is domiciled outside the United States, then at the option of asterPix, any dispute under this Agreement may be resolved by binding arbitration under the rules of the International Chamber of Commerce, and any court of competent jurisdiction may enter an order for enforcement of the arbitration award. This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods.
9.5 Waiver. No delay, omission or failure to exercise any right or remedy provided for in this Agreement shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to a right or remedy, but every such right or remedy may be exercised, from time to time, as may be deemed expedient by the party exercising such right or remedy.
9.6 Severability. In the event that any provision of this Agreement is found to be invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement shall remain in full force and effect.
9.7 Relationship Between the Parties. The parties are independent contractors to each other, and neither party has the authority to make any statement, representation, warranty or other commitment on behalf of the other party. This Agreement does not create any agency, employment, partnership, joint venture or similar relationship between the parties.
9.8 Construction. The headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect this Agreement. The term "including" (and all variants thereof) shall be construed to mean "including, without limitation." This Agreement will be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party.
9.9 Amendment. No amendment or modification of this Agreement shall be valid or binding upon the parties unless made in writing and signed by or on behalf of each party.
9.10 Entire Agreement. This Agreement, together with its Exhibits and Product Schedules, constitutes the entire agreement between the parties with respect to the subject matter hereof, and shall supersede any prior agreements or understandings between the parties, whether written or oral, with respect to the subject matter hereof. This Agreement was made in the English language, and the English language version thereof shall be the sole legally binding version hereof. No non-English language version of this Agreement may be used to affect any right or obligation relating to this Agreement.
9.11 Force Majeure. Except as may be otherwise provided in this Agreement, neither party will be deemed to have materially breached this Agreement to the extent that performance of its obligations are delayed or prevented by reason of any act of government or government regulations, natural disaster, act of God, fire, earthquake, flood, storm accident, shortage of equipment, materials, supplies or services beyond the reasonable control of such party, strike, labor dispute or walkout, war, riot, insurrection, civil commotion, or any other cause beyond the reasonable control of such party; provided that such party promptly notifies the other party of the nature and duration of such force majeure event but only for so long as such force majeure event continues. However, if such performance is delayed or prevented for a period exceeding ninety (90) calendar days, the other party shall be entitled to terminate this Agreement.
9.13 Changes to asterPix Services. asterPix reserves the right to change asterPix Services from time to time, at its sole discretion.
9.14 Publicity and Publisher Information. Publisher agrees that asterPix may: (a) refer to Publisher, by name and/or logo, in connection with asterPix's customer lists, marketing materials, and reports; (b) collect, use and share with Advertising Entities, personally identifiable information about Publisher to the extent necessary for approving and enabling Publisher's utilization of the services contemplated hereunder; and (c) share non-personally identifiable information about Publisher for any other purpose.