These Terms and Condition (the “Terms and Conditions”) have been updated on January 8, 2015. By continuing to receive payment, accessing and using the InstallCore Platform following such date, Publisher indicates that it has read and agrees to the updated Terms and Conditions.
1.1 "Confidential Information" means any non-public, proprietary, confidential and/or trade secret information of a party hereof, whether furnished before or after the Effective Date (as set forth in the Insertion Order), 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, including, without limitation, with respect to IronSource, any information pertaining to the InstallCore Platform (as defined below), the Agreement and/or any information regarding the ISV Content (as defined below).
1.2 "Content" mean data, information (including Confidential Information), graphics, links, web pages, signs, images, software and code, technology, features, products, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.
1.3 “Downloadable Application Guidelines” means IronSource’s guidelines, available here, which shall apply to Publisher and the Products (as defined below) used in connection with the InstallCore Platform, (as may be updated from time to time), and which is made an integral part hereof.
1.4 "End User" means an individual user who installs the Products and/or the ISV Content via the InstallCore Platform.
1.5 “InstallCore Platform” means IronSource’s proprietary installation and delivery platform, currently known as InstallCore including any service provided by IronSource in connection thereto and any documentation, user and/or technical manuals provided to Publisher in relation thereto but specifically excluding the Publisher Materials (as defined below) and the ISV Content.
1.7 "ISV Content" means any Content of IronSource and/or an independent software vendor (“ISV”) for computer and/or mobile device, which is offered, distributed or promoted in or from the InstallCore Platform.
1.8 "Marks" means trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered.
1.9 “Monetized Installation” means a complete and successful installation of ISV Content.
1.10 “Monetization Partners Policy” means IronSource’s policy, available here, which applies to Publisher and the Products used in connection with the InstallCore Platform, (as may be updated from time to time), and which is made an integral part hereof.
1.11 “Net Revenue” means the gross revenue generated and received by IronSource from third parties with respect to each Monetized Installation minus refunds, taxes and costs and expenses related to such revenue.
1.12 “Products” means the Publisher’s products and/or the products which are offered through Publisher's download portals to be downloaded by users, as specified in the Insertion Order.
1.13 "Proprietary Rights" means all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered Marks and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and confidential business and technical information (including, without limitation, research and development, programming, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications); (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
1.14 "Publisher Materials" means all Content provided or used by Publisher in connection with the InstallCore Platform including without limitation, Publisher’s websites, the Products, Publisher Marks, and other graphical material and any new updates, releases or versions thereto.
IronSource retains the exclusive right to modify or update these Terms and Conditions, at any time. If IronSource updates these Terms and Conditions, it will post the updated Terms and Conditions here and will provide Publisher with a notice (which may be via email to Publisher’s designated email in IronSource’s systems) should the update be material or have a material impact on Publisher, and will update the last updated date at the top of these Terms and Conditions. However, it is Publisher’s responsibility to review these Terms and Conditions from time to time to check for updates. Publisher agrees that by continuing to use the IronSource Property (as defined below) after IronSource has posted an update to these Terms and Conditions or provided Publisher with notice thereof, Publisher will be bound by the updated Terms and Conditions. If the updated Terms and Conditions are not acceptable to Publisher, Publisher’s only recourse is to cease using the IronSource Property and/or terminate the Agreement.
3.1 During the Term (as defined below), IronSource shall enable Publisher to use the InstallCore Platform for the purpose of: (1) managing the installation process of the Products (the “Installation Process”); and (2) IronSource may offer additional services, if applicable and at its sole discretion, such as hosting the Products’ installer and/or URL and Code Signing Certificate Services (as defined below). Publisher acknowledges and agrees that ISV Content will be promoted and displayed during and as part of the Installation Process (the “Monetization Feature”). The identity, frequency, placement and number of ISV Content that is part of the Monetization Feature, will be determined by IronSource at its sole discretion. Publisher acknowledges and agrees that it will not modify, interfere with, disrupt or disable the Monetization Feature in any manner.
3.2 IronSource retains the exclusive right, at its sole discretion (and without prior notice), to: (a) determine the setting, features, functionality and look and feel of the InstallCore Platform and any part thereof, including without limitation, the Monetization Feature; (b) upgrade and/or update the InstallCore Platform or any part thereof, including, without limitation, by adding, removing and/or changing any Content, materials or functionality available therein; and (c) discontinue or modify temporarily or permanently, the InstallCore Platform or any feature or portion thereof.
3.3 Publisher represents and warrants that once the InstallCore Platform has been updated and/or upgraded, it will only use the then-current version of it for all purposes contemplated herein.
3.4 The parties agree that in the event that IronSource provides Publisher with code signing certificate services, which may include without limitation the issuance and storage of any such certificates (the “Code Signing Certificate Service”): (A) Publisher will: (i) cooperate with IronSource, as reasonably requested by IronSource, including without limitation by authorizing IronSource to negotiate and sign any documents and/or agreements that may be required in order to issue code signing certificates by third party providers of such certificates (the “Certificate Vendors”), and providing IronSource with full and accurate information as may be required in order to issue any such certificates; (ii) inform IronSource, in writing, upon any changes to the information it has provided to IronSource in connection with the issuance of any such certificates; and (B) except as expressly permitted hereunder, Publisher will not: (i) use, copy, monitor, interfere with, disable or modify any code signing certificate issued by IronSource as part of the Code Signing Certificate Service (the “Issued Certificate(s)”); (ii) transfer, lease, lend, rent, sell, or otherwise distribute the Issued Certificates to any other person or entity; (iii) integrate the Issued Certificates with any product or service not pre-approved in writing by IronSource; or (iv) use the Issued Certificates in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Agreement and the terms and policies of the applicable Certificate Vendors. Publisher agrees not to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Issued Certificate(s), or permit or authorize any other person or entity to do so.
4.1 Subject to the terms and conditions of the Agreement, IronSource hereby grants to Publisher a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, non-productive, license, as applicable, during the Term to use the InstallCore Platform solely for the purpose of delivering the Products to End Users and managing the Installation Process (the “IronSource License”). All rights which are not expressly granted herein are reserved by IronSource.
4.2 Publisher may not make any use of the InstallCore Platform, in whole or in part, in any manner not expressly permitted by the Agreement. Publisher will not attempt to interfere with or disrupt the InstallCore Platform or attempt to gain access to any systems or networks that connect thereto.
4.3 Subject to the terms and conditions of the Agreement, Publisher hereby grants to IronSource a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable license during the Term to use, distribute, reproduce, display and access the Products and the applicable Publisher Marks. In addition, Publisher agrees that IronSource may use the Publisher Marks for statistical purposes and feature them in certain marketing outlets and/or channels.
4.4 Except as expressly specified in the Agreement, the Publisher will not: (a) use, copy, create derivative works of, disable or modify the InstallCore Platform or any part thereof; (b) transfer, sublicense, lease, lend, rent, sell, or otherwise distribute the InstallCore Platform or any part thereof to any other person or entity; (c) integrate the InstallCore Platform or any part thereof with any other product or service, or make any other disposition in or with respect to the InstallCore Platform; or (d) use the InstallCore Platform or any part thereof in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Agreement. Publisher agrees not to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the InstallCore Platform or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so.
4.5 Nothing herein shall be construed as restricting IronSource's right to offer, sell, lease, license, modify, publish or otherwise distribute the InstallCore Platform in whole or in part, to any other person or entity, directly or indirectly.
5. InstallCore Platform Limitation
5.1 Publisher represents and warrants that: (i) the Products’ description in the offer screens as made available via the InstallCore Platform will clearly and accurately disclose the Products description, functionality and features including without limitation, description of any End User information that may be accessed, collected and/or used, and will not be misleading in any manner, and (ii) it shall not make any statements or any other public notices which may be inconsistent with the Product’s description in the offer screens as made available via the InstallCore Platform and/or its representations and warranties contained in the Agreement. Publisher acknowledges and agrees that IronSource will not be responsible for any such discrepancy or misleading actions.
5.2 Publisher acknowledges that the InstallCore Platform includes reporting routines that automatically identify and analyze certain Products’ use and performance matrixes (including non-personally identifying aggregate End User and behavioral data) and provide reports on such to IronSource. Publisher agrees that IronSource will be free to use such data for its business purposes, at its sole discretion. In addition, Publisher acknowledges and agrees that IronSource and/or the ISVs may access, collect and/or use End-Users’ information.
5.3 Publisher represents and warrants that each Product, related service and/or any other Publisher Material used by it in connection with or in relation to the InstallCore Platform will comply in full with: (i) applicable law, including without limitation copyright law; (ii) the standard industry guidelines for acceptable downloadable applications; and (iii) the Downloadable Application Guidelines and the Monetization Partners Policy (if applicable). IronSource reserves the right, at its sole discretion, to supplement the foregoing guidelines or requirements from time to time.
5.4 Publisher acknowledges and agrees that at any time during the Term, if in IronSource’s reasonable judgment Fraudulent Activity (as defined in the Downloadable Application Guidelines) or any other activity which has an adverse impact on End Users is taking place via the InstallCore Platform, then IronSource may, at its sole discretion (and without notice to Publisher): (i) remove such Fraudulent Activity or other activity from the InstallCore Platform, and (ii) take any measures needed to prevent or correct such Fraudulent Activity or other activity.
5.5 As part of the Installation Process the End Users must provide their assent to the InstallCore Platform Terms. Publisher will abide by and comply with the InstallCore Platform Terms, and will not: (i) modify or change the InstallCore Platform Terms in any manner; (ii) distribute the Products as part of the Installation Process to End Users without making the InstallCore Platform Terms available to End Users or interfere with the provision of the InstallCore Platform Terms to End Users; or (iii) circumvent the requirement that End Users accept the InstallCore Platform Terms as part of the Installation Process.
Be advised that closing the installer prior to the completion of the installation process, will cause a relevant icon to appear on your desktop. Such icon will allow you to continue the installation process should you choose to do so in the future.
5.8 IronSource and/or its affiliates may review and examine those records of Publisher that are reasonably necessary to determine Publisher’s compliance with the Downloadable Application Guidelines and/or any other standard or requirements set forth herein, once during each four (4) month period during the Term and once during the ninety (90) days’ period following the termination of the Agreement. Such review and examination will be conducted at a mutually agreed upon time during Publisher’s normal business hours. If according to it Publisher is not (or has not been) in compliance hereunder, and Publisher shall reimburse IronSource for the reasonable costs of such review and examination together with any amounts that IronSource has previously paid Publisher that resulted from any of Publisher’s activities which are in breach of the Downloadable Application Guidelines.
6. Representations and Warranties
6.1 Each of the parties hereby represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation thereof, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; (c) it is duly organized and in good standing under the laws of its state of organization; and (d) the execution of the Agreement or the performance by it of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject.
6.2 IronSource represents and warrants that during the Term, the Installcore Platform will be wholly owned or validly and legally licensed by it or is in the public domain (as applicable), and it does not infringe or violate any Proprietary Rights of any person or entity. IronSource does not make any representation or warranty with respect to “open source” or “free software” components that may be included in the InstallCore Platform, and IronSource hereby disclaims any and all liability to Publisher or any other person or entity with respect thereof. Except as set forth above, the InstallCore Platform including any ISV Content that may be available therein and any related services including without limitation, the Code Signing Certificate Services (if applicable) are provided by IronSource "AS-IS". Except as expressly provided in the Agreement and to the fullest extent allowable by law, IronSource makes no other warranty of any kind, whether express, implied, statutory or otherwise, including, without limitation, warranties of merchantability, and fitness for a particular use or non-infringement and disclaims any such warranties. In addition, IronSource does not represent or warrant that: (i) the InstallCore Platform or any of the services available therein or in connection thereto including without limitation, the Code Signing Certificate Services (if applicable) will be error free or that any errors will be corrected; (ii) the operation of the InstallCore Platform or any of the services available therein or in connection thereto including without limitation, the Code Signing Certificate Services (if applicable) will be uninterrupted; or (iii) Publisher will profit or derive any economic benefit from Publisher’s use of the InstallCore Platform or in connection thereto including without limitation, the Code Signing Certificate Services (if applicable).
6.3 Publisher represents and warrants that: (i) any and all activities and obligations it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules and regulations, including, without limitation, United States Federal laws and privacy laws, rules and regulations; (ii) it owns or has the valid legal right or license (as applicable) to use and distribute the Publisher Materials, to the extent required or contemplated hereunder, and the Publisher Materials (including, without limitation, the Products) and/or any part thereof, do not and will not, at any time during the Term, directly and/or indirectly, infringe or violate any Proprietary Right or any other right of any person or entity; (iii) all Products that are based on and/or contain any components of any "open source" or free software are in full compliance with the applicable "open source" or "free software" license under which they are provided to users, including without limitation, the distribution of the Products in accordance with the terms and conditions of the Agreement; (iv) it will only use the InstallCore Platform for the purposes and in the manner expressly permitted under the Agreement; (v) it is solely responsible for the Publisher Materials (including, without limitation, the Products) and any Content or technology that may be reached via the Publisher Materials; and (vi) it has the means and capacity to perform its obligations under this Agreement; (vii) the distribution of the Products via the InstallCore Platform will not cause the InstallCore Platform or any ISV Content to become subject to any Excluded License (for purposes hereof, the term "Excluded License" means any license that requires as a condition of use, modification and/or distribution of the software provided under such license (the “Licensed Software”), that the Licensed Software or other software combined and/or distributed with the Licensed Software will be: (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge); and (viii) it shall not bind IronSource to any agreement or obligation or give any representation, warranty or guarantee in respect of IronSource, except for those that are specifically authorized by IronSource in advance and in writing.
7.1 In consideration for Publisher's use of the InstallCore Platform including the Monetization Feature, each calendar month during the Term, Publisher shall receive payment that will be equal to the fixed percentage out of the Net Revenue, as set forth in the Insertion Order, accrued during the Term, as identified by the InstallCore Platform, in any such applicable calendar month during the Term (the "Consideration"). Publisher acknowledges and agrees that the calculation of the Consideration as determined by the InstallCore Platform is final and binding on it.
7.2 Notwithstanding anything else to the contrary set forth in the Agreement, Publisher acknowledges and agrees that IronSource shall have no obligation to pay Publisher any Consideration with respect to (i) amounts generated based on Publisher’s breach of the Agreement, (ii) amounts generated based on Publisher’s breach of any terms, guidelines, agreements and/or any policies of any applicable services, social media sites or other platforms; and/or (iii) any Monetized Installations derived from any Fraudulent Activity. IronSource may withhold and/or offset (as it shall deem appropriate, at its sole discretion) a relevant portion of any Consideration due to Publisher any portion of any Consideration previously received by Publisher in respect of any matter under this Section.
7.3 Payment of the Consideration will be based solely on IronSource’s statistics and shall be made in U.S. Dollars by electronic funds transfer. Publisher agrees that IronSource’s failure to remit payment which is cured by IronSource within five (5) business days of the due date shall not be considered as a breach by IronSource of its payment obligation hereunder.
7.4 As part of the InstallCore Platform, Publisher shall have access to IronSource's Business Intelligence system where the Publisher will be able to view reports and analysis regarding the installations of the Products and the Monetized Installation (the “BI System”). Publisher acknowledges and agrees that the BI System is provided to Publisher for convenience purposes only and IronSource is not liable for any unavailability or inaccuracy, temporary or otherwise, of the BI System. The final monthly report with respect to the Consideration due to Publisher for each applicable calendar month of the Term shall be available by the tenth (10) business day as of the end of each such calendar month (the “Monthly Report”). The Publisher acknowledges and agrees that the manner in which and the form of the Monthly Report, including without limitation, the manner in which the Consideration is calculated and presented, shall be determined by IronSource, at its sole discretion, and may be modified and/or altered by IronSource from time to time without any prior notice.
7.5 If Publisher reasonably believes that there are discrepancies in the Consideration detailed in any Monthly Report, it will provide IronSource with a detailed written notice (via e-mail to IronSource’s email address set forth in the IO) to that effect (each a “Discrepancy Notice”), by no later than seven (7) days as of receipt of the applicable Monthly Report (the “Discrepancy Notice Period”). Following IronSource’s receipt of the Discrepancy Notice, the parties will cooperate, in good faith, in order to resolve the applicable discrepancy. Publisher agrees that if no Discrepancy Notice is received by IronSource by the expiration of the applicable Discrepancy Notice Period, then the applicable Monthly Report will be considered as final and non-appealable proof for the purpose of computing the Consideration due and payable by IronSource and set forth in each such Monthly Report.
7.6 All taxes, duties and charges imposed or that may be imposed by any applicable governmental agency in connection with the Agreement and each party’s performance hereunder, including without limitation, sales, use, value added, and any other taxes, customs and/or import duties, will be borne by the Publisher. IronSource will have the right to withhold or offset against any payments due to Publisher hereunder any amounts due by Publisher to IronSource for previous excess payment or otherwise, and to withhold and deduct from any payment hereunder any and all applicable taxes and charges, if and to the extent determined by IronSource to be required according to any applicable law, rule or regulation.
8. Limitation of Liability
IN NO EVENT WILL IRONSOURCE, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO PUBLISHER OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION TO DAMAGES FOR ANY LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, LOSS OF CUSTOMERS, LOSS OF ANY EQUIPMENT OR SOFTWARE, SYSTEMS, COMPUTER DAMAGE OR SYSTEM FAILURE , LOSS OF DATA OR INFORMATION, SERVICE INTERRUPTION, INTEREST CHARGES OR COST OF CAPITAL, COST OF PROCUREMENT OF SUBSTITUTE EQUIPMENT, SOFTWARE, SYSTEMS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR PUBLISHER’S ABILITY OR INABILITY TO USE THE INSTALLCORE PLATFORM UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT IRONSOURCE SHOULD HAVE REASONABLY FORESEEN 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 WILL IRONSOURCE’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED ONE THOUSAND U.S. DOLLARS (US$1,000). FOR THE AVOIDANCE OF DOUBT, THE ABOVE LIMITATION OF LIABILITY SHALL ALSO APPLY TO ANY ACTS AND/OR OMISSIONS OF ANY CERTIFICATE VENDORS THAT IRONSOURCE USES IN ORDER TO PROVIDE PUBLISHER WITH THE CODE SIGNING CERTIFICATE SERVICES.
9. Confidential Information
9.1 During the Term, each party may have access to the Confidential Information of the other party, therefore, the recipient of Confidential Information agrees: (i) not to disclose the disclosing party’s Confidential Information to any person or entity other than to its shareholders, directors, officers, affiliates, employees, advisors or consultants (collectively, the "Representatives") and then only on a “need to know” basis and provided that these Representatives are bound by written agreement to comply with the confidentiality obligations contained herein; (ii) not to use any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and obligations under the Agreement; and (iii) to keep the disclosing party's Confidential Information confidential using the same degree of care it uses to protect its own Confidential Information, which shall not be in any event less than a reasonable degree of care.
9.2 At any time upon the written request of disclosing party, recipient shall return to disclosing party, or destroy, in accordance with disclosing party’s written instructions, all of disclosing party's Confidential Information in its possession, including without limitation, all writing or recordings whatsoever prepared by recipient and based on disclosing party's Confidential Information and recipient shall provide disclosing party with a written certificate, evidencing the destruction of disclosing party's Confidential Information.
9.3 Notwithstanding the foregoing, in the event that recipient is required by legal process, order of any court of competent jurisdiction, or any applicable law, rule or regulation to disclose any of disclosing party’s Confidential Information, then prior to any such disclosure, recipient will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief, and further provided, that if such protective order or other remedy is not obtained, recipient shall disclose only that portion of the disclosing party’s Confidential Information that it is legally required to disclose by advise of its counsel, and shall use all actions required to obtain confidential treatment for such Confidential Information.
9.4 It is agreed that if recipient fails to abide by its obligations under this Section, disclosing party will be entitled to immediate injunctive relief, in addition to any other rights and remedies available to it at law or in equity.
9.5 The obligation to protect the Confidential Information shall survive and continue, following the termination of the Agreement for a period of three (3) years from the date of such termination, unless a longer period of protection is available under applicable law.
9.6 Further to the above, Publisher acknowledges and agrees that if IronSource is required by legal process, order of any court of competent jurisdiction, or any applicable law, rule or regulation to disclose to any applicable authorities or any court of competent jurisdiction information related to the Publisher in connection with its use of the IronSource Property (as defined below), IronSource may disclose such information, without notice to Publisher.
10. Proprietary Rights
10.1 Except as expressly granted in the Agreement, IronSource retains all right, title and interest in and to the InstallCore Platform and the IronSource Marks (except for the Publisher Materials) (together, the “IronSource Property”) and any derivatives thereof, including any Proprietary Rights therein and the ISV’s retain all right, title and interest in the ISV Content including any Proprietary Rights therein. All use of the IronSource Property (including, without limitation, the ISV Content) will inure to the benefit of IronSource and/or any of its ISVs and Publisher will not: (i) contest, or assist others to contest IronSource’s rights or interests in and to the IronSource Property (including, without limitation, the ISV Content) or the validity of IronSource’s rights in and to the IronSource Property (including, without limitation, the ISV Content) and all applications, registrations or other legally recognized interests therein, or (ii) seek to register, record, obtain or attempt to pursue any Proprietary Rights or protections in or to the IronSource Property (including, without limitation, the ISV Content. All rights in and to the IronSource Property which are not expressly granted herein are reserved by IronSource.
10.2 Except as expressly granted in the Agreement, Publisher retains all right, title and interest in and to the Publisher Materials (together, the “Publisher Property”) and any derivatives thereof, including any Proprietary Rights therein. All use of the Publisher Property shall inure to the benefit of Publisher and IronSource will not: (i) contest, or assist others to contest, Publisher’s rights or interests in and to the Publisher Property or the validity of Publisher’s rights in and to the Publisher Property and all applications, registrations or other legally recognized interests therein, or (ii) seek to register, record, obtain or attempt to pursue any Proprietary rights or protections in or to the Publisher Property. All rights in the Publisher Property which are not expressly granted herein are reserved by Publisher.
10.3 Neither party shall assert any Proprietary Rights in or to the other party’s Content, materials or any element, derivation, adaptation, variation or name thereof. Neither party shall have the right to remove, obscure or alter any notices of Proprietary Rights or disclaimers appearing in or on any Content or materials provided by the other party.
11.1. Publisher will defend, hold harmless, and indemnify IronSource and/or its subsidiaries, affiliates, directors, officers, employees, agents, its licensors, successors and permitted assigns (collectively, the "IronSource Group") from and against any and all claims, suits, actions, demands, proceedings, costs, expenses, losses, damages and/or liabilities of any kind (including but not limited to reasonable attorney's fees) threatened, asserted or filed, brought, commenced or prosecuted (collectively, “Demands”) by any third party against the IronSource Group arising out of or relating to: (a) any acts or omissions on the part of Publisher; (b) a breach or alleged breach of any warranty, representation or obligation made by Publisher under the Agreement; (c) any use of the InstallCore Platform in any manner inconsistent with or in breach of the Agreement; (d) the marketing, distribution, licensing or sale of the Products by Publisher; or (e) the End Users' use of the Products.
11.2. The IronSource Group will: (i) promptly notify the Publisher of any Demand; (ii) provide the Publisher, at the cost of the Publisher, reasonable information and assistance in defending the Demand; and (iii) give the Publisher control over the defense and settlement of the Demand; provided, however, that any settlement will be subject to the IronSource Group’s prior written approval (which approval shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, the IronSource Group will not be required to allow Publisher to assume the control of the defense of a Demand (in which case IronSource Group will assume the control at Publisher’s costs), to the extent that the IronSource Group determines that: (a) such Demand relates directly to the InstallCore Platform; (b) the relief sought against the IronSource Group is not monetary damages; or (c) settlement of, or an adverse judgment with respect to, such Demand could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of IronSource. The IronSource Group may join in the defense of any Demand at its own expense.
12. Term and Termination
12.1 The Agreement shall commence on the Effective Date stipulated in the Insertion Order and shall continue in force and effect thereafter unless terminated by either party, in accordance with section 12.2 below (the "Term").
12.2 The Agreement may be terminated in accordance with any of the following provisions:
12.2.1 Either party may terminate the Agreement, for any reason and without liability, upon providing the other party with five (5) days’ prior written notice;
12.2.2 Either party may immediately terminate the Agreement: (a) if the other party breached any of its obligations, representations and/or warranties set forth in the Agreement and failed to cure such breach within two (2) days from receipt of a written notice thereof; (b) if the other party engages in any of the acts prohibited by the Agreement and failed to cure such breach within two (2) days from receipt of a written notice thereof; or (c) by written notice to the other party, If a party 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 a trustee, administrator or receiver appointed for a material portion of its business or assets or has any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed is not dismissed within sixty (60) days of such filing.
12.2.3 IronSource may immediately terminate the Agreement, by providing Publisher with a written notice, if: (a) Publisher engages in any action that, in IronSource’s sole discretion, reflects poorly on IronSource or otherwise disparages or devalues IronSource's reputation or goodwill; (b) IronSource determines, at its reasonable judgment, that it is commercially impractical for it to continue providing the InstallCore Platform to Publisher as a result of legal and/or technical considerations;
12.2.4 If a party becomes subject to any of the events described in Section 12.2.2 above, then it shall promptly notify the other party about the occurrence of such an event, in writing.
12.3 Upon termination of the Agreement, for any reason: (a) all rights and licenses granted herein shall terminate immediately; (b) Publisher’s right to use the InstallCore Platform or any of the services available therein or in connection thereto including without limitation, the Code Signing Certificate Services (if applicable) shall cease immediately; and (c) Publisher shall promptly return to IronSource, or destroy and/or delete and certify the destruction of any and all IronSource Property at its possession at such time, including without limitation IronSource's Confidential Information.
12.4 Following the termination of the Agreement, any provisions of the Agreement that in order to fulfill their purpose need to survive the termination of the Agreement (including Sections 1, 7-11, 13 and this Section 12.4), shall survive.
12.5 Publisher acknowledges and agrees that: (a) IronSource will not be liable to Publisher or any other person or entity for damages resulting from the termination of the Agreement or termination of Publisher’s access to the InstallCore Platform, and (b) following the termination of the Agreement, IronSource will have no obligation to maintain any information stored in its data centers related to Publisher or any other person or entity related to Publisher and the Products or to provide any information to Publisher or any other person or entity on its behalf.
13.1 The Agreement embodies the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior agreements, understandings, commitments or arrangements, oral or written, with respect to the subject matter hereto.
13.2 The captions and headings in the Agreement are for convenience purpose only and shall not affect the construction or interpretation of the Agreement.
13.3 Neither party shall be entitled to assign or transfer the Agreement or any of its rights or delegate any of his obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, IronSource may assign any of its rights and obligations under the Agreement, without receiving Publisher’s consent: (a) if such assignment is made to any of its affiliates or subsidiaries, provided that IronSource will notify Publisher on such assignment; or (b) in connection with any merger, consolidation, change of control or sale of all or a material portion of its assets. Any unauthorized assignment or transfer shall be null and void.
13.4 The Agreement shall be binding upon and inure to the benefit of each of the parties and their respective successors and assignees. The 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, the Agreement.
13.5 Neither party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder due to any condition beyond its reasonable control, including without limitation to, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war and governmental action.
13.6 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.
13.7 If any provision of the Agreement is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise unenforceable, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions will not be affected and will continue in full force and effect.
13.8 The failure to require performance of any provision of the Agreement shall not affect a party’s right to require performance at any time thereafter; nor shall a waiver of a breach of any provision constitute a waiver of the provision itself or a waiver on another occasion.
13.9 Any notice or other communications required or permitted to be given hereunder or in connection herewith shall be in the English language and in writing, and may be given by facsimile, by e-mail (with receipt confirmation), by personal delivery or by sending the same through the post via prepaid registered envelope addressed to the other party at its address set forth in the Insertion Order or any other address provided by such party, in writing, to the other party for the purposes of this Section and any notice so given shall be deemed to have been served: (a) upon receipt when delivered personally; (b) upon confirmation of receipt when sent via facsimile or e-mail; (c) within one (1) business days of being sent via overnight courier; or (d) within three (3) business days of being sent via registered or certified mail (postage prepaid).
13.10 This Agreement will be governed by, construed and enforced in accordance with the laws of Israel, without regard to its conflicts of law principles or provisions. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Any disputes arising out of or in connection with this Agreement shall be exclusively settled by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”) by one arbitrator appointed in accordance with the ICC Rules (the “Arbitrator”). The arbitration shall take place in Israel and shall be conducted in the English Language. The arbitration proceedings shall be conducted on an expedited basis and shall result in an award within no more than 60 days. The arbitration shall be conducted on a confidential basis. The award of the Arbitrator shall be final and binding on the parties. Nothing contained herein shall prevent ironSource from applying to any court of law in order to obtain temporary injunctions and equitable relief, or any equivalent temporary remedy, against the other Party, in order to restrain the breach of any restrictive covenants pursuant to this Agreement. The arbitration award shall be enforceable in any court of competent jurisdiction. Any motion to enforce or vacate an arbitration award under this agreement shall be kept confidential to the maximum extent possible.