Publisher Agreement

Carefully read the following terms and conditions:
PUBLISHER AGREEMENT

IMPORTANT – PLEASE READ CAREFULLY THE TERMS OF THIS PUBLISHER AGREEMENT ("AGREEMENT") BEFORE CREATING A TOOLBAR BY USING THE CONDUIT ENVIRONMENT. THIS AGREEMENT IS AVAILABLE ONLINE AT www.conduit.com. BY APPROVING THIS AGREEMENT AS SET FORTH BELOW, YOU ALSO AGREE TO BE BOUND BY THE CONDUIT TOOLBAR PRIVACY POLICY AND CONDUIT WEBSITE TERMS OF USE AVAILABLE AT www.conduit.com.

I.	DEFINITIONS

For purposes of this Agreement, the following terms will have the indicated meanings:

CONDUIT: means CONDUIT LTD.

PUBLISHER: an individual or entity that creates a Toolbar using the Environment. Identifying details of PUBLISHER are as provided by PUBLISHER during the registration process upon creating a Toolbar using the Environment. 

Toolbar: The toolbar created by the PUBLISHER using the Environment which can be installed by End-Users as an add-on to a web browser, providing End Users with various features, components and content offered by CONDUIT, PUBLISHER and/or other third parties. 

Toolbar Default Web-Search Engine:  the primary web-search engine available within the search-box component of a Toolbar. 

Web-Search Results Page: 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.

Environment: The CONDUIT on-line platform or web portal through which PUBLISHER can create, maintain and customize Toolbars and Toolbar Components. 

End-User: an Internet user who downloads and installs a Toolbar created by PUBLISHER using the Environment.  

Toolbar Components: features within the Toolbar available for the use by the End-Users (such features may include but are not limited to: search engine, radio, RSS feeds, web gadgets, alert boxes, links etc.). 

PUBLISHER Materials: logos, marks, links, images, texts, applications, and any other content which is added by PUBLISHER to the Toolbar and/or the Hosted Pages, content on PUBLISHER Website, and/or the technology used by PUBLISHER in connection with his Website or Toolbar (other than trademarks, trade names, content, service marks or logos owned or licensed by CONDUIT).

Hosted Pages: mean web pages which are automatically generated in the Environment for each Toolbar. The Hosted Pages contain content which is generated by the PUBLISHER and content and/or component generated by CONDUIT. PUBLISHER may opt not to use the Hosted Pages.
 
EULA: End-User License Agreement provided exclusively by CONDUIT, which End-Users must approve upon installation of any Toolbar created using the Environment.

PUBLISHER Website: Any domain and/or web site owned and/or operated by PUBLISHER or by a third party licensed by PUBLISHER.  

TOOLBAR Privacy Policy: A statement created by CONDUIT regarding its privacy policy with respect to the use of the Toolbar by PUBLISHER which is available at http://www.conduit.com. 


II.	APPROVAL

PUBLISHER may approve the terms of this Agreement by either signing this agreement and sending it to CONDUIT or by checking the box next to the sentence: “I agree to the terms and conditions of the Publisher Agreement” when creating a new Toolbar using the Environment (or similar language that indicates the Publishers consent). CONDUIT shall have the right, in its sole discretion, to accept or decline PUBLISHER’s entry into this Agreement. Do not select “I agree to the terms and conditions of the Publisher Agreement” button or use the Environment until you have carefully read, understood, and agreed to the term 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 PUBLISHER's entry into this Agreement, this Agreement is entered into as of the day the PUBLISHER accepts the terms of this Agreement.

Each individual or entity that uses the Environment to create a Toolbar will be deemed to have consented to being subject to the terms of this Agreement and the Toolbar Privacy Policy.

Publisher acknowledges and agrees that Conduit has the right to dynamically add or remove buttons from the Publisher Toolbar.

III.	TOOLBAR CUSTOMIZATION

CONDUIT shall provide PUBLISHER with on-line 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 password.

CONDUIT shall grant PUBLISHER the exclusive right to create modify and maintain its Toolbar using the Environment, all in accordance with the terms of this Agreement.  

CONDUIT shall maintain and support various Toolbar Components and other tools available for PUBLISHER to implement in its Toolbar using the Environment. Notwithstanding the foregoing, CONDUIT retains the exclusive right to determine which Toolbar Components will be available for the use of PUBLISHER in the Environment. Furthermore, CONDUIT retains the exclusive right to add or remove components or other tools from the Environment or change the settings and/or appearance of the Environment at any given time and without prior notice to PUBLISHER.

CONDUIT retains the exclusive right to dynamically update Toolbar Components or toolbar software versions without prior notice to PUBLISHER.

CONDUIT shall host the following files and/or data on its servers: (i) toolbar settings made by PUBLISHER using the Environment, (ii) toolbar installation file, and (iii) the Hosted Pages.

CONDUIT shall provide PUBLISHER with a link to a page hosted on CONDUIT servers from which End-Users may download the Toolbar created by PUBLISHER.

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 Toolbar settings so that 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 searches to the Web-Search Results Page from any place other the search-box component on his Toolbar. 
 
PUBLISHER shall not encourage End-Users or any third party to generate false searches in the Toolbar Default Web-Search Engine and/or in the Web-Search Results Page, or to generate false clicks within the Web-Search Results Page. 
False searches may include but are not limited to: automated and/or fraudulent searches, or searches for purposes other than retrieval of information and internet browsing in good faith. False clicks may include but are not limited to: automated and/or fraudulent clicks on ads or sponsored links, or clicks for purposes other than retrieval of sponsored information in good faith.


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-sub-licensable royalty-free license during the term of this Agreement to create and/or modify a Toolbar using the Environment, and promote and distribute such Toolbar, in each case solely in connection with the exercise of PUBLISHER’s rights under this Agreement and subject to the terms hereof. All rights not specifically granted herein shall be retained by CONDUIT.

PUBLISHER may not make any use of the Toolbar and/or Environment in whole or in part that is not expressly permitted by this Agreement. PUBLISHER shall not (i) sell, assign, rent, lease, distribute, market, disclose, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to, 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 Toolbar (excluding Publisher Materials), Environment and related CONDUIT technology are exclusively owned by CONDUIT and/or its authorized licensors, and that no right other than the limited license granted herein is provided to PUBLISHER. PUBLISHER shall not assert copyright, trademark or other intellectual property ownership or other proprietary rights in the Toolbar, CONDUIT technology, or in any element, derivation, adaptation, variation or name thereof. 

The Toolbar customized by PUBLISHER shall not include and/or be promoted using any logos or trademarks of CONDUIT, unless and to the extent that CONDUIT adds its own button, logo or any other branded component to the Toolbar. 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 tradenames, 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.


V.	ABUSE

PUBLISHER shall not create, distribute, promote or use the Toolbar in any abusive manner and shall not use content or services in connection with the Toolbar and/or Publisher Website from a third party which is engaged in abusive activity. The following (including, but not limited to) will be considered abusive: (i) activities violating local, state, federal or international law; (ii) activities affecting the security or privacy of End-Users; (iii) the use of illegal or inappropriate content; (iv) the use of content related to pornography, nudity, or harassment of individuals or groups; (v) inappropriate use of public or private infrastructure; and (vi) unauthorized use of content which is protected by intellectual property rights.	

CONDUIT has the right to dynamically remove abusive content from Toolbar 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 embedded in Toolbar Components.

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 such package, without obtaining a prior approval from Conduit in writing.  

PUBLISHER shall not distribute the Toolbar to End Users unless the Toolbar is accompanied by the EULA. PUBLISHER will use best commercial efforts to ensure that such End Users comply with the terms of the EULA and will inform CONDUIT promptly of any known violation, infringement or breach.

PUBLISHER shall not circumvent the requirement the End-Users accept the EULA as part of the Toolbar installation process. PUBLISHER shall not modify or change any of the terms provided in the EULA.

VI.	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 server or the Toolbar will meet all of PUBLISHER’s requirements or that performance of the CONDUIT server or the Toolbar will be uninterrupted or error-free. CONDUIT IS NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES, OR FOR ANY THIRD PARTY SITES THAT CAN BE LINKED THROUGH THE TOOLBAR. THE TOOLBAR AND THE ENVIRONMENT ARE PROVIDED BY CONDUIT TO PUBLISHER OR PUBLISHER’S END-USERS “AS IS”. CONDUIT AND ITS LICENSORS MAKE NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT.

PUBLISHER represents and warrants that: (i) it has full power and authority to enter into this Agreement, (ii) the PUBLISHER Materials are owned or validly licensed for use by PUBLISHER or are in the public domain and it shall be solely responsible for all PUBLISHER Material (including but not limited to third party content that it may have added to his Toolbar), (iii) the PUBLISHER Materials do not: (a) constitute defamation, libel, obscenity, hate, or discrimination;  (b) violate applicable law or regulations;  (c) infringe or violate any copyright, patent, trademark or other similar intellectual property rights; (d) otherwise violate or breach any duty toward, or rights of any person or entity, including without limitation, rights of privacy and publicity; or (e) result in any consumer fraud; (iv) PUBLISHER is solely responsible for any content published on the Toolbar, Hosted Pages or content that End-Users may be referred to by use of the Toolbar that was made available by PUBLISHER or by a third party affiliated with PUBLISHER; (v) the PUBLISHER Materials do not contain advertisements which appear in an unreasonable manner or exceed a reasonable number; (vi) it shall comply with all the terms specified in the Toolbar Privacy Policy, (vii) it solely responsible for its Website including all materials posted on PUBLISHER Website and that the PUBLISHER Website and any material on the PUBLISHER Website (including but not limited to software, content, products, services, trademarks) shall not infringe or violate any copyright, patent, trademark or other similar intellectual property rights any third party, and (viii) it 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 or the Toolbar, except such as are specifically authorized by CONDUIT in advance and in writing.


VII.	INDEMNIFICATION

PUBLISHER shall indemnify, hold harmless, and defend CONDUIT and its affiliates from any and all losses, liabilities, damages, expenses and costs (including attorneys’ fees) incurred thereby arising from a breach of any warranty, representation or covenant made by PUBLISHER under this Agreement (including but not limited to the representations and warranties set forth in Article VI); provided that CONDUIT promptly notifies PUBLISHER in writing of any such claim and allows PUBLISHER to participate at its own expense in the defense of any such claim.  PUBLISHER will not enter into any settlement or compromise of any such claim without CONDUIT’s prior written consent.

VIII.	LIMITATION OF LIABILITY

CONDUIT AND ITS 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, 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. IN NO EVENT WILL CONDUIT’S AND ITS LICENSORS’ AGGREGATE LIABILITY 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 TO PUBLISHER.

IX.	TERM/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.

If PUBLISHER breaches any covenant, representation and/or warranty of this Agreement, if PUBLISHER engages in any acts prohibited by this Agreement or 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, CONDUIT may terminate the Agreement immediately upon notice to PUBLISHER.

Either party may terminate this Agreement on written notice to the other party for any reason and without liability for such termination upon 7 days prior notice.

Upon the termination of this Agreement for any reason, all license rights granted herein shall terminate immediately, and PUBLISHER shall immediately cease using the download link to the Toolbar.

Upon the termination of this Agreement, CONDUIT shall have the exclusive right to remove PUBLISHER’s Toolbar from the CONDUIT’s servers, disable the Toolbar, modify the PUBLISHER’s Toolbar or replace the Toolbar with a different toolbar published by a third party.

X.	CONFIDENTIALITY

During the Term of this Agreement, PUBLISHER may have access to certain non-public information of CONDUIT, which information 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 the CONDUIT, or destroy subject to CONDUIT’S written instructions, all 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 the 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.

XI.	TOOLBAR PRIVACY POLICY; TOOLBAR SECURITY 


CONDUIT is committed to respecting the privacy of End Users and the confidentiality of their personal data. 

PUBLISHER shall not utilize the Environment or any Toolbar Component to violate the privacy rights of toolbar End Users, or any other third parties. PUBLISHER shall comply with the toolbar’s privacy policies published by Conduit from time to time at the conduit website. 
CONDUIT shall provide PUBLISHER with a hosted privacy page that includes information about the Toolbar Privacy Policy as set by CONDUIT ("Privacy Page"). CONDUIT will provide every Toolbar that was created using the Environment with a link to the Privacy Page. 
	Notwithstanding the above, PUBLISHER may implement and disclose a privacy policy prepared by the PUBLISHER which may be different than the policy represented in the Privacy Page, only if such policy: (i) does not contradict with PUBLISHER’s obligations in this Agreement, (ii) is at least as protective of End-Users’ privacy as the policy in the Privacy Page.
 
PUBLISHER shall not utilize the Environment or any Toolbar Component to create a security hole or to pose any kind of security threat to its End Users ("Security Breach"). Security Breach may include (but is not limited to) all kinds of the following: spyware, adware, viruses, and malicious/exploiting component.
 
In case a Security Breach or a violation of privacy rights is detected, PUBLISHER shall immediately remove the Security Breach or privacy violation and inform its End Users and CONDUIT regarding 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 such Security Breach.

PUBLISHER agrees to indemnify, defend and hold harmless CONDUIT, its officers, directors, employees, affiliates and agents 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 creating a Security Breach by PUBLISHER.  



XII.	MISCELLANEOUS

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 will be governed and construed in accordance with the laws of the State of New York, without regard to conflict of law principles. 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. 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.  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.  

The email address provided by PUBLISHER upon creating a new Toolbar using the CONDUIT Environment or any other address of PUBLISHER as may be listed in this Agreement shall be regarded as the address for delivery of notices according to this Agreement unless PUBLISHER updates the email address in its CONDUIT account and receives confirmation from conduit of such change.  

CONDUIT retains the exclusive right to modify any of the terms and conditions in this Agreement without prior notice to PUBLISHER or prior consent of PUBLISHER. In such case, CONDUIT shall give notice of these changes in an announcement published on the CONDUIT website, by sending PUBLISHER notification thereof by e-mail or by any other reasonable method. 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 emails 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 UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE AGREE BUTTON, PUBLISHER EXPRESSLY CONSENTS TO BE BOUND BY THIS AGREEMENT. 
	
Last version Created on February 20, 2008
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