Publisher Agreement

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Publisher Agreement
Carefully read the following terms and conditions:
PUBLISHER AGREEMENT PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS PUBLISHER AGREEMENT ("AGREEMENT") BEFORE CREATING A TOOLBAR USING THE ENVIRONMENT. BY APPROVING THIS AGREEMENT, YOU (A) ACKNOWLEDE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS OF THIS AGREEMENT; AND (B) YOU AGREE TO BE BOUND BY THE CONDUIT TOOLBAR PRIVACY POLICY AND CONDUIT WEBSITE TERMS OF USE AVAILABLE AT http://www.conduit.com. I.	DEFINITIONS For the purpose of this Agreement, the following capitalized terms shall have the following meanings: "Conduit" means Conduit Ltd. "Conduit Technology" means all of the technology offered by Conduit to Publisher and/or third parties, including, but not limited to: the Environment; Toolbar creation and configuration tools; Toolbar Components (that are owned by Conduit); Hosted Toolbar Pages; promotional banners; reports and analytics; and other tools and/or products and/or features offered by Conduit. "End User" means an individual, human user who installs and/or uses a Toolbar that was created using the Environment. "Environment" means Conduit's online platform or website through which Publisher can create, maintain and customize Toolbars, Toolbar Components and other components offered by Conduit. "EULA" means the End-User License Agreement provided exclusively by Conduit, which End Users must approve upon installation of any Toolbar that was created using the Environment. "Hosted Toolbar Pages" means web pages with basic predefined content provided by Conduit, which are automatically generated in the Environment for each Toolbar, including but not limited to: personal start page, support and Toolbar-related information pages, gadget and add-on pages, and Toolbar download page. The Hosted Toolbar Pages may also contain content which is added by the Publisher and content which may be added by End Users. Publisher may opt not to use the Hosted Toolbar Pages by default. "Intellectual Property Right(s)" means: (i) all patentable inventions, all improvements thereto and all patents, patent applications and patent disclosures; (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, and all other rights of authorship, and all applications and registrations in connection therewith; (iv) all trade secrets and confidential business and technical information (including research and development, know-how, proprietary knowledge, formulas, technology, engineering, production and other designs, drawings, engineering notebooks, industrial models, software and specifications); and (v) 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 a Toolbar using the Environment and/or distributes such Toolbar to End Users. Publisher's identifying details are those provided by Publisher during the registration process upon creating a Toolbar or as provided otherwise upon Conduit’s prior written approval. "Publisher Materials" means logos, marks, links, images, texts, applications, gadgets, web pages, technology and any other content which is added by Publisher to the Toolbar and/or the Hosted Toolbar Pages and/or the content on Publisher Website or on Publisher marketing materials (other than Conduit’s Intellectual Property Rights and images, components or content that is owned or licensed by Conduit). "Publisher Website" means any web domain and/or website owned and/or operated by Publisher or by a third party licensed by Publisher. "Toolbar" means the toolbar created and/or customized by Publisher using the Environment, which when installed as an add-on to a web browser by End Users, provides such End Users with various features, components and content that are owned by Conduit, Publisher and/or any third party. "Toolbar Components" means features within the Toolbar or directly related to the Toolbar that are available for the use of End Users (such features may include but are not limited to: Toolbar Search Box, buttons, radio, RSS feeds, web gadgets, alert boxes, links, security components and others). "Toolbar Default Web-Search Engine" means the primary web-search engine available within the search-box component of a Toolbar. "Toolbar Privacy Policy" means a privacy policy created by Conduit regarding the use of the Toolbar by Publisher which is available at http://www.conduit.com, as updated by Conduit from time to time. "Toolbar Search Box" means a search-box component located on the Toolbar into which End Users may enter search queries. "Web-Search Results Page" means a web page that is generated for each referral of search query to the Toolbar Default Web-Search Engine. The Web-Search Results Page includes the results of the search query and a search box for continuous searches of the same web-search engine. II.	APPROVAL Publisher may approve the terms and conditions of this Agreement by either signing this Agreement offline and sending the signed copy to Conduit or by selecting the check box next to the sentence that says, "I AGREE TO THE TERMS AND CONDITIONS OF THE PUBLISHER AGREEMENT" (or similar language that indicates the Publisher's consent) upon creating a new Toolbar using the Environment (the “Consent Check Box”). Conduit shall have the right, in its sole discretion, to accept or decline Publisher’s entry into this Agreement. Do not select the Consent Check Box or use the Environment unless you have carefully read, understood, and agreed to the terms and conditions of this Agreement. Publisher hereby waives any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. Unless Conduit declines its engagement with Publisher hereunder, this Agreement is entered into as of the date the Publisher accepts the terms and conditions of this Agreement. Each individual or entity that uses the Environment to create or maintain a Toolbar will be deemed to have consented to be bound by the terms and conditions of this Agreement and the Toolbar Privacy Policy, as shall be updated from time to time. III.	TOOLBAR CUSTOMIZATION Conduit shall provide Publisher with online access to the Environment based on the Toolbar name and password chosen by Publisher when registering. Publisher agrees to notify Conduit in writing of any unauthorized and/or fraudulent use of the Toolbar name and the password. Conduit may offer various Toolbar Components, Hosted Toolbar Pages, and other tools available for Publisher to implement in its Toolbar using the Environment. Conduit retains the exclusive right: (i) to determine which Toolbar Components, Hosted Toolbar Pages or tools will be available for the use of Publisher in the Environment; (ii)  to add or remove the Toolbar Components or other tools from the Environment or change the settings and/or appearance of the Environment at any given time, without prior notice to Publisher; and (iii) dynamically update the Environment and/or Toolbar Components and/or Toolbar software versions, without prior notice to Publisher. Publisher acknowledges and agrees that: (i) at any time during the Term hereof, Conduit has the right to dynamically add or remove buttons from the Publisher Toolbar; and (ii) Conduit may remove from the Toolbar or the Environment Toolbar Components that are provided by third parties, in the event that Conduit shall no longer be able to offer such Toolbar Components as a result of legal, business or technical issues. Conduit shall provide Publisher with a notice upon the occurrence of such an event. Conduit retains the exclusive right to determine the definitions of the Toolbar Default Web-Search Engine and/or change these definitions from time to time. Publisher shall not modify the Toolbar settings so that the Toolbar Components or the Toolbar Search Box may link or refer to Toolbar Default Web-Search Engines competing with or similar to the Toolbar Default Web-Search Engine selected by Conduit. Publisher shall not refer search queries to the Web-Search Results Page using a search box or a search referral other than the search-box component provided by Conduit as part of the Environment. Publisher may promote the Toolbar from the Publisher Website and other online or offline properties (“Toolbar Promotion”). Publisher shall add a visible notice next to the Toolbar Promotion that the “Toolbar Powered by Conduit” (the word Toolbar should link to: http://www.conduit.com). IV.	GRANT OF LICENSE Subject to the terms and conditions of this Agreement, Conduit grants to Publisher a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable royalty-free license during the term of this Agreement to create and/or maintain a Toolbar using the Environment, and promote and distribute such Toolbar, and all solely in connection with the exercise of Publisher’s rights under this Agreement to the extent expressly permitted hereunder (the "License"). All rights which are not expressly granted herein are reserved by Conduit. Publisher may not make any use of the Conduit Technology or Conduit’s third-party licensors' technology and content in whole or in part that is not expressly permitted by this Agreement. Publisher shall not (i) sell, assign, rent, lease, distribute, market, export, import, act as an intermediary or provider or otherwise grant rights to third parties in respect of the Toolbar and/or Environment or any part thereof, or (ii) undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Toolbar and/or Environment or any part thereof. Publisher acknowledges that all right, title and interest in the Conduit Technology and Conduit’s Intellectual Property Rights are exclusively owned by Conduit and all right, title and interest in the technology and content of its authorized third-party licensors are exclusively owned by such licensors, and that no right, title or interest (including without limitation, any implied license), in or to any Conduit Intellectual Property Rights or in or to any of its third-party licensors Intellectual Property Rights, other than the limited License granted herein, is provided to Publisher. Publisher shall not assert any Intellectual Property Right to the Toolbar, Conduit Technology, and the technology or content of Conduit third-party licensors or to any element, derivation, adaptation, variation or name thereof. Except as set forth in Section III above, the Toolbar or the Hosted Toolbar Pages shall not include and/or be promoted using any Intellectual Property Right of Conduit, unless and to the extent that Conduit adds its own button, logo or any other branded component to the Toolbar or the Hosted Toolbar Pages or unless otherwise provided in this Agreement. Publisher shall not adopt, use, or register or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, any Conduit trademarks, service marks or trade names, or any word or mark confusingly similar to them in any jurisdiction. Publisher may not issue any press release or other public statements regarding this Agreement without Conduit’s prior written approval. Publisher acknowledges that Conduit may feature the Toolbar or the Hosted Toolbar Pages in different marketing outlets and/or collateral, including but not limited to: newsletter, case studies, email or ad campaigns, web pages and more (the “Promotion”). Publisher grants Conduit a limited, worldwide, non-exclusive, non-assignable, non-transferable, royalty-free, non-sub-licensable right to use Publisher’s marks and Toolbar details as part of the Promotion. In the event that Publisher wishes to be excluded from the Promotion, Publisher shall notify Conduit in writing. Unless otherwise agreed by parties, Publisher shall not be entitled to any compensation as part of the Promotion. V.	ABUSE Publisher represents and warrants that the Publisher Materials do not contain Abusive Content or constitute as Abusive Content. In addition, Publisher shall not create, distribute, promote or use the Toolbar or the Hosted Toolbar Pages by any means that qualify as Abusive Activity or add to the Toolbar or the Hosted Toolbar Pages any Abusive Content and shall not use any content generated by any third party which is engaged in any Abusive Activity or distributes any Abusive Content. The term “Abusive Activity” means: (i) activity which violates local, state, federal or international law; (ii) activity which affects the security or privacy of End Users; (iii) the use of Abusive Content; (iv) inappropriate use of public or private infrastructure; (v) violation or breach of any duty toward, or rights of any person or entity, including without limitation rights of privacy and publicity; (vi) unauthorized use of content which is protected by Intellectual Property Rights; or (vii) results in any consumer fraud. The term “Abusive Content” means: (i) content which violates local, state, federal or international law; (ii) content which is inappropriate, offensive or constitutes defamation, hate or discrimination; or (iii) content which is related to pornography, obscene content, explicit nudity or harassment of individuals or groups. Conduit has the right, at its sole discretion, to dynamically remove Abusive Content from the Toolbar or the Hosted Toolbar Pages at any time and without notice to Publisher, and/or take any measures needed to prevent or correct Abusive Activity at any time and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content) or for no reason at all. Conduit retains the exclusive right to limit, edit or block excessive or inappropriate advertisements appearing on the Toolbar or the Hosted Toolbar Pages. Publisher shall make sure that the Publisher Materials and content added by Publisher to the Toolbar or the Hosted Toolbar Pages does not contain advertisements which appear in an unreasonable manner or exceed a reasonable number. Unless Publisher receives Conduit’s prior written approval, Publisher shall not distribute or promote the Toolbar by bundling the Toolbar installation file with any other application or software or as a part of a package of software or any other application. Publisher shall not: (a) modify or change any of the terms provided in the EULA; (b) distribute the Toolbar to End Users without the EULA; or (c) circumvent the requirement that the End Users accept the EULA as part of the Toolbar installation process. The aforesaid are material obligations of Publisher hereunder. Publisher will use its best commercial efforts to ensure that the End Users comply with the terms of the EULA and will inform Conduit promptly of any known violation, infringement or breach thereof. Publisher shall not engage with and shall not encourage End Users or any other third party to engage in Fraudulent Activity in relation to the Toolbar. The term “Fraudulent Activity” means: automated, fraudulent, forced or otherwise invalid usage or promotion of the Toolbar or search-related activities, including but not limited to: (i) clicks on Toolbar Components or other components; (ii) clicks on ads or sponsored links in the Web-Search Result Pages; (iii) searches in the Toolbar Search Box or other searches using the Conduit Technology or the technology and content of its third-party licensors; or (iv) installations of the Toolbar that are generated without the End User’s informed consent or without applicable disclosure about the download or install process or content of the Toolbar, or any other similar activities whether generated directly or indirectly by Publisher, any third party on Publisher’s behalf or any other third party including but not limited to the Toolbar’s End Users. In the event that Publisher or an End User or any other third party engages in any Fraudulent Activity, Conduit shall have the sole and exclusive right to disable the Toolbar. VI.	CONFIDENTIALITY During the Term of this Agreement, Publisher may have access to certain non-public information of Conduit, meaning information which a reasonable person would consider confidential or which is marked as "confidential" or "proprietary" by Conduit (together, the "Confidential Information"). Publisher agrees: (i) not to disclose any Confidential Information to any third parties; (ii) not to use any Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; and (iii) to keep the Confidential Information confidential using the same degree of care Publisher uses to protect its own confidential information, which shall in any event be at least a reasonable degree of care. At any time upon the written request of Conduit, Publisher shall return to Conduit, or destroy, subject to Conduit’s written instructions, all the Confidential Information in tangible form in its possession, and shall provide Conduit with a written certificate evidencing the complete and full execution of the provisions of this Section. Unauthorized disclosure or use of 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 shall keep in strict confidence and shall not disclose to any third party any Confidential Information received from Conduit during the Term hereunder and for a period of two (2) years following the termination of this Agreement. VII.	TOOLBAR PRIVACY POLICY; TOOLBAR SECURITY Conduit is committed to respecting the privacy of End Users and the confidentiality of their personal data. As part of the Hosted Toolbar Pages, Conduit shall provide Publisher with a hosted privacy page that includes a privacy policy as set by Conduit which will be available to End Users via a link on the Toolbar (the "Privacy Page"). During the Term hereof, Publisher shall abide by and comply with: (i) the Toolbar Privacy Policy; and (ii) the Privacy Page. Publisher shall not utilize the Environment or any Toolbar Component for any   violation or breach of the privacy rights of Toolbar End Users, or any other third parties. Notwithstanding the above, Publisher may offer the Toolbar to End Users with a privacy policy that is drafted by Publisher which will replace the “Privacy Page”, provided, however, that such privacy policy: (i) is in compliance with all of Publisher’s obligations, representations and warranties contained in this Agreement, and (ii) is at least as protective of End Users’ privacy as the policy in the Privacy Page. The Publisher acknowledges that to be eligible for a trusted software certification seal that may be offered by Conduit, Publisher must comply with the terms listed in the following document: http://www.truste.org/pdf/Trusted_Download_Certification_Agreement.pdf. Such compliance shall be determined by Trust-e (www.truste.org) and/or Conduit at their sole discretion. Publisher may not embed on the Publisher Website or on the Publisher Materials any privacy-or safety-related certification seal or mark that is provided by Conduit or by Conduit partners as part of the Hosted Toolbar Pages. Publisher shall not utilize the Environment, the Hosted Toolbar Pages or any Toolbar Component to create a security hole or to pose any kind of security threat to its End Users or any third party ("Security Breach"). A Security Breach may include (but is not limited to) all kinds of the following: spyware, adware, viruses and malicious/exploiting content or components. 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. This remedy is in addition to any other legal remedies to which Conduit may be entitled in relation to such Security Breach. VIII.	REPRESENTATIONS AND WARRANTIES Conduit represents and warrants that it has full power and authority to enter into this Agreement. Conduit does not warrant that the Conduit products, services or servers will meet all of Publisher’s requirements or that performance of the Conduit products, services or servers will be uninterrupted or error-free. CONDUIT IS NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY PUBLISHER AND/OR ANY THIRD PARTY THAT IS USED BY PUBLISHER OR END USERS VIA THE ENVIRONMENT OR THE TOOLBAR OR HOSTED TOOLBAR PAGES, OR FOR ANY THIRD-PARTY SITES THAT CAN BE LINKED THROUGH THE ENVIRONMENT OR THE TOOLBAR OR HOSTED TOOLBAR PAGES. THE TOOLBAR, THE ENVIRONMENT AND THE HOSTED TOOLBAR PAGES ARE PROVIDED BY CONDUIT TO PUBLISHER AND/OR PUBLISHER’S END USERS “AS IS”. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, 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 ARISING IN THE COURSE OF OR CONNECTED TO THE PERFORMANCE HEREUNDER. IN ADDITION, CONDUIT DOES NOT WARRANT THAT THE OPERATION OF ITS SITE, PRODUCTS OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE AND WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. Publisher represents and warrants that: (i) it has full power and authority to enter into this Agreement, (ii) the execution and delivery of this Agreement, and the performance by Publisher of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which such party or any of its affiliates are a party or will be party or violate any rights of any third parties arising therefrom; (iii) the Publisher Materials (including but not limited to third-party content that it may have added to its Toolbar) and the Publisher Website (including all materials posted on it) are and will be owned wholly or validly and legally licensed for use by Publisher during the term hereof or are in the public domain and do not infringe or violate any copyright, patent, trademark or other similar Intellectual Property Rights of any third party; (iv) Publisher is solely responsible for all the Publisher Material (including but not limited to third-party content that it may have added to its Toolbar), any content embedded on the Toolbar or on the Hosted Toolbar Pages or content that may be reached via the Toolbar and the Publisher Website and all the materials posted on it (including but not limited to software, content, products, services and trademarks); (v) at all times during the term hereof, Publisher will comply with this Agreement, the EULA, the Toolbar Privacy Policy and the Privacy Page, as shall be amended from time to time; (vi) Publisher shall ensure that End Users read and accept the EULA, and (vii) Publisher shall not bind Conduit to any agreement or obligation nor incur any liability on behalf of Conduit or make any promises or give any warranties or guarantees in respect of Conduit, the Toolbar or the Environment, except those that are specifically authorized by Conduit in advance and in writing. IX.	INDEMNIFICATION Publisher agrees to defend, hold harmless, and indemnify Conduit, and/or its subsidiaries, affiliates, directors, officers, employees, agents and assigns (“Indemnified Parties”), 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”) against Conduit and/or any Conduit Indemnified Party, to the extent that such Claims arise out of or relate to: (i) any breach or alleged breach of any warranty, representation or obligation made by Publisher in this Agreement; (ii) the Publisher Materials, the Publisher Website, Publisher's content or any third-party content (other than the content legally provided hereunder by Conduit); (iii) Publisher’s use of the Conduit Technology and its third-party licensors' technology and content;  or (iv) the End Users' use of the Toolbar. Publisher will not enter into any settlement or compromise of any such claim without Conduit’s prior written consent. Publisher agrees to indemnify, defend and hold harmless Conduit and/or any Conduit Indemnified Party from any and all claims, losses, damages and expenses (including attorney's fees) made by any third party due to or associated with the violation of End User’s privacy rights or the creation of a Security Breach by Publisher. X.	LIMITATION OF LIABILITY CONDUIT AND ITS THIRD-PARTY LICENSORS WILL NOT BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCT LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT CONDUIT WAS 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 AND ITS THIRD-PARTY LICENSORS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE TOOLBAR AND/OR ENVIRONMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED $5,000. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY. Unless and then only to the extent this Agreement expressly states otherwise, nothing in this Agreement shall exclude or limit Publisher’s liability for: (i) breaches of any confidentiality obligations contained in this Agreement; (ii) infringement or misappropriation of Conduit’s Intellectual Property Rights or its third-party licensors Intellectual Property Rights; or (iii) Publisher’s breach of the License to use the Toolbar granted in this Agreement. XI.	TERM AND TERMINATION The term of this Agreement (the "Term") 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. Either party may terminate this Agreement upon seven (7) days' prior written notice to the other party for any reason and without liability for such termination. Conduit may immediately terminate this Agreement and disable the Toolbar, by providing the Publisher with a notice, in any one of the following instances: (i) if Publisher breaches any obligation, representation and/or warranty contained in this Agreement; (ii) if Publisher engages in any acts prohibited by this Agreement; (iii) 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; or (iv) if Conduit reasonably determines that it is commercially impractical to continue supporting the Toolbar in light of legal, business or technical issues. Upon the termination of this Agreement for any reason: (i) all rights and licenses granted hereunder by each party shall cease immediately; (ii) each party shall promptly return to the other party, or destroy and certify the destruction of, all Confidential Information of the other party; (iii) Publisher’s rights to use any Conduit Technology or materials and the Toolbar, as permitted under this Agreement, shall cease immediately; (iv) Publisher shall immediately cease using the download link to the Toolbar;  and (v) Conduit shall have the exclusive right to remove the Toolbar from the Conduit servers, disable the Toolbar and/or modify the Toolbar. XII.	MISCELLANEOUS This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any other prior or collateral agreements with respect to the subject matter hereof, whether oral or written. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement (including Articles VI, VII, VIII, IX, X and XII), shall be deemed to survive for as long as necessary to fulfill such purposes. Publisher may not assign its rights and/or delegate its obligations under this Agreement without Conduit’s prior written consent. Conduit may assign its rights and/or delegate its obligations under this Agreement without Publisher 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 will be governed and construed in accordance with the laws of the State of New York, in the United States of America, without regard to conflict of law principles. Each party agrees to submit to the personal and exclusive jurisdiction of the courts located in New York, in the State 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. Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement. 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. Any amendments or modifications to the Agreement must be in writing and executed by an authorized representative of each party. 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. The e-mail address provided by Publisher upon creating a Toolbar using the Environment, or any other address associated with Publisher, shall be regarded as the address for delivery of written notices according to this Agreement, unless Publisher updates the e-mail address in its Conduit account and receives confirmation from Conduit of such change. Conduit retains the exclusive right to modify and/or change any of the terms and conditions of this Agreement without prior notice to Publisher or prior consent of Publisher. Conduit shall give notice of these modifications or changes in an announcement published on the Conduit website, or by sending Publisher notification thereof by e-mail or by any other reasonable method. By continuing the use of the Environment, Publisher agrees and accepts such modification or changes. 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. On any particular date, the version of this Agreement available at http://www.conduit.com shall be the version of this Agreement in effect on such date. PUBLISHER EXPRESSLY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND UNDERSTANDS THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY SELECTING THE CHECK BOX NEXT TO THE SENTENCE THAT SAYS, "I AGREE TO THE TERMS AND CONDITIONS OF THE PUBISHER AGREEMENT", PUBLISHER EXPRESSLY CONSENTS TO BE BOUND BY THIS AGREEMENT. Last version created on November, 2008
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