KONTERA TECHNOLOGIES, INC.

Transcription

1 KONTERA TECHNOLOGIES, INC. IN-TEXT AGREEMENT This In-Text Agreement ( Agreement ) is a legal agreement between you ( Publisher ) and Kontera Technologies, Inc. ( Kontera ). YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE YOU CAN IMPLEMENT AND BEGIN USING THE CONTENTLINK SERVICE. BY CLICKING ON THE ACCEPT BUTTON OF THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU SHOULD EXIT THIS PAGE. BY DOING SO YOU FOREGO ANY IMPLIED OR STATED RIGHTS TO RECEIVE THE CONTENTLINK SERVICE. 1. Definitions ContentLink Service means Kontera s advertising service that analyzes Publisher Website pages, determines topics, keywords and matches and serves relevant sponsored keyword links within the text of such Publisher Website pages JavaScript Tag means HTML code that a publisher implements on its website in order to participate in the ContentLink Service Net Revenue means the revenue actually received by Kontera resulting from the use of the ContentLink Service through Publisher Websites less any fee or revenue share paid out to or credited back by a list partner, advertiser referral partner, index partner, search list provider or other entity providing revenue generating listings through the Content Link Service Publisher Websites means the URL or URLs submitted by Publisher during the application process and any other Publisher website that Kontera approves pursuant to Section Revenue Share fifty percent (50%) of Net Revenue Start Date means the date that Publisher accepts this Agreement. 2. Use of ContentLink Service Site Approval. Implementation of the ContentLink Service is subject to Kontera s prior approval of Publisher s websites. Each additional website must be approved by Kontera prior to Publisher placing the JavaScript Tag on such website. Kontera reserves the right to deny or revoke participation of any website in the ContentLink Service at any time in its sole discretion Publisher Websites. Publisher represents and warrants that (i) it maintains adequate rights in and to the Publisher Websites (including without limitation under the intellectual property rights in and to any third party content contained therein) in order to engage in the ContentLink Service, including without limitation the right to modify and create derivative works of any materials on the Publisher Sites and (ii) the Publisher Websites do not portray illicit drugs; and do not contain pornography, adult or mature content; or any content that otherwise promotes violence, illegal activity or infringes on the rights of others. Publisher will indemnify, defend, and hold Kontera harmless from and against all damages, liabilities, costs, and expenses (including, without limitation attorney fees) that Kontera may incur as the result of any action brought against Kontera arising out of the acts of Publisher in breach of this Section JavaScript Tag. License. Subject to the terms and conditions of this Agreement, Kontera hereby grants to Publisher a non-exclusive, non-transferable, non-sublicensable license to use the JavaScript Tag on Publisher Websites for the sole purpose of participating in the ContentLink Service. Delivery and Implementation. Kontera will provide Publisher a JavaScript Tag and instructions to implement the JavaScript Tag on Publisher Websites in an following the execution of this Agreement. Publisher shall follow such instructions in implementing the JavaScript Tag, and shall implement the JavaScript Tag on all Publisher Websites.

2 2.4. Restrictions. General. Publisher will not, and will not authorize or encourage any third party to (i) fraudulently or purposely manipulate the content of the Publisher Websites, including without limitation, ghosting, cloaking or providing misleading metatags in order to fool the ContentLink Service so that it provides less contextually relevant results or (ii) generate fraudulent impressions of or fraudulent clicks on any advertisements served through the ContentLink Service, including through repeated manual clicks, the use of robots or other automated tools or any other method that may lead to artificially high numbers of impressions, downloads, or clicks. Publisher agrees to refer to Kontera, and not directly to any advertiser or advertising service provider, all communications regarding any matter arising out of Publisher s use of the ContentLink Service. License Restrictions. Publisher shall not use the JavaScript Tag for any other purpose other than that set forth in Section 2.3 above. Without limiting the foregoing, Publisher shall not: (i) use the JavaScript Tag for the purposes of developing a product that will be owned by a third party or that would compete with Kontera s products or services; (ii) sublicense, rent, lend, lease, permit third party access to, or use of, the JavaScript Tag; (iii) copy, distribute, reproduce, sell, use or allow access to the JavaScript Tag, except as explicitly permitted under this Agreement; (iv) modify, adapt, translate, or prepare derivative works from the JavaScript Tag; or (v) remove, obscure, or alter Kontera s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the JavaScript Tag. This is license, not a sale, so title to the JavaScript Tag shall not pass to Publisher under any circumstances. Kontera does not grant to Publisher any license, express or implied, under the intellectual property of Kontera or its licensors except as expressly stated in this Agreement Exclusivity. On all Publisher Websites, Publisher will ensure that Kontera is the exclusive source of any services that are similar to the ContentLink Service for the term of this Agreement. 3. Publicity. Either party may make appropriate and truthful reference to the other party in its company and promotional literature; provided that such party properly attributes the other party s trademarks and complies with the other party s guidelines. No license is granted, express or implied, under either party s trademarks, trade names or service marks. 4. Financial Terms and Reports Revenue Share. Kontera will pay Publisher the Revenue Share; provided, however that Kontera may adjust Revenue Share as Kontera deems appropriate in its sole discretion, including, without limitation by ignoring click-throughs and/or withholding payments or crediting back payments made to Publisher if Kontera, in its sole reasonable discretion, believes that such click-throughs and/or payments are fraudulent or invalid in nature Payment Terms. Kontera shall pay Publisher the Revenue Share on the first day of the second month after the month in which such Revenue Share was generated. For example, Kontera will pay Publisher the Revenue Share for April (if any) on June 1. Notwithstanding the foregoing, if the Revenue Share for any given month is five dollars ($5) or less, Kontera shall not be liable to Publisher for any such payment. Further, if the Revenue Share for any given month is between five dollars ($5) and one hundred dollars ($100), Kontera will roll such amount over to the subsequent payment period, and shall not make any payment to Publisher until the accrued Revenue Share for a payment period is at least one hundred dollars ($100). Any dispute regarding a payment from Kontera hereunder must be submitted to Kontera in writing within thirty (30) days of posting date of such payment or it shall be deemed waived. Payment shall be calculated and finally settled solely based on records maintained by Kontera, and no other records will be deemed relevant for payment calculations or determinations. If Kontera pays Publisher by check, Publisher must collect such payment within one hundred and eighty days of the date of the check; otherwise such check will be null and void Reporting. During the entire term of this Agreement, as the information is reasonably available, Kontera will provide Publisher, solely for informational purposes, access to its online reporting system, on which Publisher may view number of click-throughs on ads

3 delivered by the ContentLink Service, and total revenues for each day. Kontera shall use commercially reasonable efforts to display an accurate revenue projection in the Publisher reporting provided under this Section 4.3, but for the removal of doubt, Kontera does not guarantee the amounts, if any, to be paid to Publisher as a result of this Agreement, and all Revenue Share paid to Publisher hereunder will be strictly based on Kontera s calculation of the Revenue Share at the end of each payment period. 5. Term and Termination Term. Unless earlier terminated as set forth herein, this Agreement is effective from the Start Date through the first anniversary of the Start Date. After such time, this Agreement will automatically renew for successive twelve (12) month terms unless either party notifies the other party that such party will not renew the Agreement within thirty (30) days of the end of the then-current term Termination. (c) For Convenience. Either party may terminate this Agreement at any time upon thirty (30) days notice to the other party. For Breach. Either party may terminate this Agreement effective immediately, if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach within thirty (30) days after receiving notice from the non-breaching party. Without limiting the foregoing, in the event that Publisher removes the JavaScript Tag from Publisher Websites or otherwise blocks the operation of ContentLink Service, without giving Kontera appropriate notice of termination, such action shall be deemed a material breach of Agreement. In addition to all of the other remedies available to it, Kontera may withhold any and all payments due to Publisher under this Agreement for the two (2) months prior to such material breach and require Publisher to refund to Kontera any payments already paid to Publisher by Kontera for such two (2) month period. For Financial Reasons. Either party may terminate immediately upon written notice at any time if: (i) the other party becomes insolvent; (ii) the other party discontinues its business; or (iii) the other party is dissolved or liquidated Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Publisher s right to use the JavaScript Tag and ContentLink Service shall immediately terminate and Publisher shall immediately remove the JavaScript Tag from all Publisher Websites. The following provisions shall survive any expiration or termination of this Agreement: Sections 2.2, 2.4, 3 (for amounts due as of the date of termination), 5.3, 6, 7, 9, 10, 11 and Ownership. As between Publisher and Kontera, (i) Publisher retains all right, title and interest in and to the Publisher Website including content thereon and (ii) subject to the limited rights and licenses granted to Publisher pursuant to this Agreement, Kontera retains all right, title and interest in and to the ContentLink Service and the JavaScript Tag. 7. Confidentiality. Confidential Information means any information disclosed by Kontera to Publisher, either directly or indirectly in writing, orally or by inspection of tangible objects which is either (i) designated or marked as Confidential at the time of disclosure, or (ii) disclosed under circumstances reasonably indicating that such information is confidential. Without limiting the foregoing, the JavaScript Tag, all information relating to the JavaScript Tag, and the terms and conditions of this Agreement shall be deemed the Confidential Information of Kontera. During the term of this Agreement and for three (3) years following the expiration or termination of this Agreement, (i) Publisher agrees that it shall not use any Confidential Information other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by Kontera, (ii) Publisher shall use the same degree of care to protect Confidential Information as it uses to protect its own most highly confidential information, but in no circumstances less than reasonable care, and (iii) Publisher shall not disclose Confidential Information to any person or entity other than its officers, employees and consultants who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with it consistent with this Section 7.

4 8. Changes of the Terms. Kontera may make changes to this Agreement from time to time. When these changes are made, Kontera will make a new copy of the Agreement available at Publisher understands and agrees that if Publisher uses or enjoys the benefits of the ContentLink Service after the date on which the terms or conditions of the Agreement has changed, Kontera will treat such use or enjoyment of the benefits as acceptance of the updated Agreement. 9. Representations and Warranties By Kontera. Kontera represents and warrants that Kontera is the owner of or has the necessary licenses to provide the JavaScript Tag and the ContentLink Service to Publisher for the purposes of this Agreement; and Kontera has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Kontera hereunder By Publisher. Publisher represents and warrants that Publisher is the owner of or is legally authorized to act on behalf of the owner of all Publisher Websites for the purposes of this Agreement; and Publisher has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Publisher hereunder. 10. Disclaimer of Warranties. OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 9, THE CONTENTLINK SERVICE (INCLUDING THE JAVASCRIPT TAG) IS PROVIDED AS IS AND WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OUT OF A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE, NONINFRINGEMENT (INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS), QUALITY, PRODUCTIVENESS OR CAPACITY, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. KONTERA, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE CONTENTLINK SERVICE WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CONTENTLINK SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. KONTERA MAKES NO GUARANTEE REGARDING THE NUMBER, QUALITY, OR CONTENT OF ANY ADVERTISEMENTS OR THE TIMING OF DELIVERY OF SUCH ADVERTISEMENTS. KONTERA SHALL NOT BE RESPONSIBLE FOR ANY ADS OR WEBSITES THAT ARE SERVED THROUGH OR LINKED FROM THE CONTENTLINK SERVICE. PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE, OR ANY REVENUE, WILL BE GENERATED AS A RESULT OF THIS AGREEMENT. THE FOREGOING DISCLAIMER OF WARRANTY IS A FUNDAMENTAL PART OF THE BASIS OF KONTERA S BARGAIN HEREUNDER, AND THAT KONTERA WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH DISCLAIMER. 11. Limitation of Liability. EXCEPT WITH REGARD TO A BREACH OR ANY ALLEGATION WHICH IF TRUE WOULD CONSITITE A BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 9, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EXCEPT FOR AS SET FORTH IN SECTION 2.2, IN NO EVENT WILL EITHER PARTY S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER WILL EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID UNDER THIS AGREEMENT BY KONTERA TO PUBLISHER DURING THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. 12. Miscellaneous. This Agreement is the entire agreement between the parties on the subject matter hereof. No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be

5 construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, the Agreement will continue in full force and effect without such provision and will be interpreted to reflect the original intent of the parties. This Agreement will be governed by the law of the State of California, without regard to its conflict of laws principles. The parties consent to the personal and exclusive jurisdiction of courts located in San Francisco, California. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, except that either party may assign any of its rights and obligations under this Agreement without consent of the other party in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets related to this Agreement or other similar transaction. This Agreement shall inure to the benefit of and shall be binding on each party s permitted assignees, transferees and successors. Wavier by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed to be a waiver of any subsequent breach of any right or as a waiver of any other right. Except for the payment of fees hereunder, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, or any other reason when failure to perform is beyond the reasonable control of the nonperforming party.