This Como Publisher Agreement has been updated on May 18, 2014. By accessing and using the Conduit Ltd., d/b/a “Como” ("Como", "us" or "we") technology and the como.com website following such update, you indicate that you have read and agree to the updated terms and conditions of this Como Publisher Agreement , including those attached hereto as Appendix A (collectively, the “Agreement”).
You may create your Mobile App(s) by registering to access the online account associated with your Mobile App(s) (the "Publisher Account" or "your Account" respectively) as prompted. Your Account may also provide you access to the Como mobile platform at www.como.com (the “Platform”). To manage your Account and view information regarding your Mobile App(s), you will need to log in to Booker Software, Inc.’s (“Booker”) website at: http://booker.com using your Booker login credentials. Booker and Como jointly reserve the right to issue you a new username and password associated with your Account. Your acceptance of the terms and conditions of this Agreement is required in order to access the Platform.
You may utilize our submission services, that will allow you or Booker to submit your Mobile App(s) to the mobile application stores or marketplace of mobile applications, as detailed in Section 4 in Appendix A attached hereto.
BY ACCESSING OR USING THE COMO PLATFORM OR YOUR PUBLISHER ACCOUNT, OR BY CREATING A MOBILE APP YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT AND AGREE THAT COMO WILL TREAT YOU AS A PUBLISHER ON THE COMO PLATFORM FROM THAT POINT ONWARDS. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE COMO PLATFORM AND/OR CREATE AND/OR DISTRIBUTE A MOBILE APP VIA THE COMO PLATFORM. IF YOU CONSENT TO THIS AGREEMENT ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT AND YOUR CONSENT TO THIS AGREEMENT WILL BE TREATED AS THE CONSENT OF THE BUSINESS. IN THAT EVENT, "PUBLISHER", "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT BUSINESS. YOU ALSO CONSENT TO THE USE OF: (A) ELECTRONIC MEANS TO COMPLETE THIS AGREEMENT AND TO PROVIDE YOU WITH ANY NOTICES GIVEN PURSUANT TO THIS AGREEMENT; AND (B) ELECTRONIC RECORDS TO STORE INFORMATION RELATED TO THIS AGREEMENT AND YOUR USE OF THE COMO TECHNOLOGY. COMO RECOMMENDS THAT YOU PRINT OUT OR SAVE A LOCAL COPY OF THE AGREEMENT FOR YOUR RECORDS
For any questions with respect to your account, please contact Booker at: [email protected].
APPENDIX A – GENERAL TERMS AND CONDITIONS
The following capitalized terms shall have the following meanings:
- 1.1 "Mobile App(s)" means any mobile application generated or administered by Publisher via its use of the Como Technology in compliance with the terms and conditions of this Agreement, for use on the mobile phone device.
- 1.4 "Como Platform" means Como Technology and/or the TPC
- 1.5 "Como Technology" means Como’s proprietary Mobile App(s) generating platform and any other products and services provided by Como therein for use and/or display on the internet, mobile phones, tablets and/or any other current or future platform or media (whether owned by Como or licensed by it) including, but not limited to, software and tools provided by Como to Publisher which enable the implementation and administration of the Mobile App(s) in connection with such technology, but not including TPC.
- 1.6 "Content" means data, information, graphics, links, web pages, signs, images, software and code, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.
- 1.7 "Content Sharing Services" means the service, software and features made available by Como which enables web and/or mobile publishers and Content providers to access, distribute and share their Content with third parties as well as select and use third party Content shared by others.
- 1.8 "End User" means an individual user who downloads, installs or uses a Mobile App.
- 1.9 "End User Content" means any Content, information or other materials which End Users post, upload, link and otherwise submit to or via a Mobile App.
- 1.10 "Export Control Laws" means any U.S. export laws and regulations including export or re-export directly or indirectly of technology, including to countries embargoed by the U.S.
- 1.11 "Fraudulent Activity" means any of the following activities: (a) fictitious installation and/or download of a Mobile App; (b) installing or uninstalling any program (including, without limitation, a Mobile App) on an End User’s mobile device, without the End User’s consent or any other similar practices; (c) automated, deceptive, fraudulent, encouraged or other invalid searches in any web search feature, or searches for any purpose other than organic retrieval of information and web browsing in good faith; (d) automated and/or fraudulent clicks on: ads, sponsored links, sponsored search results, Mobile App components, or such clicks for purposes other than retrieval of information in good faith; (e) initiating or using a promotion in connection with a Mobile App which violates any applicable law or regulation, or an existing agreement between Publisher and Como or which is not consistent with industry standards and good practices; (f) reverse engineer, bypassing and/or circumventing the Como Platform; (g) hacking to a Mobile App or the Como Platform or any part thereof, or using a Mobile App or the Como Platform in order to hack into public or private infrastructure or equipment; or (h) using in connection with a Mobile App or the Como Platform any material that contains software viruses or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment.
- 1.12 "Intellectual Property Right(s)" means: (i) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (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, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (iv) all trade secrets and confidential business and technical information (including, but not limited to, research and development, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production and other designs, drawings, engineering notebooks, industrial models, software and specifications); (v) all rights in databases and data compilations, whether or not copyrightable; and (vi) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
- "Marks" mean trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered.
- 1.14 "Mobile App" means Como powered mobile application, developed by the publisher via the Como Platform.
- 1.15 "Publisher Materials" means: any Content provided or used by Publisher and/or Reseller in connection with a Mobile App, including that which a Publisher and/or Reseller adds to any part of the Como Technology, the TPC, or to Publisher’s website, including any new releases or new versions thereof and any Updates thereto.
- 1.16 "Prohibited Activity" means: (a) any activity or use of Content that (i) encourages conduct that would be considered a criminal offense or could give rise to civil liability, or violates any applicable law, regulation or order of any court or tribunal including, but not limited to, collecting, using or disclosing personal information from any individuals in violation of applicable law, including without limitation personal information of minors in violation of applicable privacy law, including, without limitation, the Children's Online Privacy Protection Act of 1998, regulation and/or industry best practices; (ii) violates, misappropriates, or infringes any third party (including, without limitation, End Users) Intellectual Property Rights, rights of privacy and publicity, or other proprietary or legal rights; (iii) materially interferes or disrupts web navigation or browsing via mobile device; (iv) involves rewards programs or actual monetary exchanges, without Como's express written approval ; or (v) modifications to other mobile applications (and/or Content on such mobile applications) used by End Users and controlled by third parties without the End Users' consent; (b) usage which adversely affects public or private infrastructure or equipment; (c) installation or un-installation of a Mobile App that is generated without an accurate and conspicuous disclosure and without informed consent or any other similar practices; (d) Fraudulent Activity; (e) use, endorsement, and/or promotion of Content which: (i) is, promotes or advocates pornographic, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, gambling-related, or discriminatory activity, promotes illegal drugs or arms trafficking, violates Export Control Laws, creates a risk to a person's safety or health, compromises national security or interferes with an investigation by law enforcement officials, or is offensive, misleading or deceptive material or is any type of malware; (ii) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; or (iii) contains excessive or inappropriate advertisements as determined by Como in its sole discretion; (f) using a Mobile App or the Como Platform to offer, distribute or promote any mobile application that is substantially similar to the Mobile App; (g) redirecting traffic or replacing web pages or any other pages available in a Mobile App to web pages or other pages which promote Content or products which may adversely affect the use of the Mobile App and/or violates any of the prohibitions contained herein and (h) using distribution channels in violation of Section 5.13 below.
- 1.17 "Publisher" means an individual or entity that creates uses, implements, distributes, makes available or administers a Mobile App.
- 1.18 "Publisher Materials" means any Content provided or used by Publisher in connection with a Mobile App, including that which a Publisher adds to any part of the Como Technology, the TPC, or to Publisher’s website (solely to the extent such Content from Publisher’s website is loaded or incorporated into the Como Platform), including any new releases or new versions thereof and any Updates thereto
- 1.20 "Third Party Content" or "TPC" means any third party Content and technology that is offered, distributed or promoted in or from the Como Technology.
- 1.21 "Unlimited Period" means for a period of time ending upon the earlier of: (i) the End User removes the Mobile App(s) from his/her mobile device; (ii) this Agreement was terminated by Publisher; or (iii) Como decides, in its sole discretion, to stop providing the services available via the Como Platform.
- 1.22 "Updates" means bug fixes, error corrections and patches; and does not include new versions or new releases.
- 2.1 Subject to (i) the continued existence of an agreement between Como and Booker relating to Publisher’s use of any Mobile App(s); and (ii) Publisher’s timely payment of any and all fees described in Section 5.15, Como hereby grants to Publisher a limited, non-exclusive, non-assignable, non-transferable, non-sub-licensable right and license, during the Term to use the software and tools that are provided as part of the Como Platform solely to create, use, distribute and administer Mobile App(s);.
- 2.3 Publisher grants to Como a limited, non-exclusive, non-transferable, non-sublicensable license to display Publisher’s Marks within the Mobile App solely as permitted by Publisher in this Agreement. Any display by Como of Publisher’s Mark(s) must be in accordance with applicable law. Como acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from its use of a Publisher Marks as permitted hereunder will inure solely to the benefit of Como.
- 3.1 Publisher agrees to provide accurate, current and complete information during the registration process and to keep such information up to date. Como and Booker reserve the right to suspend or terminate the Publisher Account if in either of their sole determination it reasonably believes that any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. Publisher is responsible for safeguarding and maintaining the confidentiality of its username, password and corresponding Publisher Account information. Publisher agrees that it is entirely and solely responsible for any and all activities or actions that occur under its Publisher Account, whether or not Publisher has authorized such activities or actions. Publisher agrees to notify Como or, to the extent applicable, Booker in writing of any unauthorized and/or fraudulent use of its Publisher Account, a Mobile App, the name of its Mobile App or its username or password. For purposes hereof, Publisher's identifying details will be those provided by it or Booker during the registration process for accessing the Platform.
- 3.2 As between Como and Publisher, Como retains the exclusive right in its sole discretion to: (a) determine which features, services, products, software or other tools will be available for Publisher’s use via the Como Platform; (b) add, change or remove any Content, materials and/or functionality made available in any Mobile App or in the Como Platform at any time, with or without reason. For example, Como may change the settings and/or appearance of any part of the Como Platform or any elements thereof which may be provided in a Mobile App or otherwise, without prior notice or Como may provide any Updates, new versions, new releases and upgrades to any Como Platform or any other elements thereof. Notwithstanding the foregoing, Como will do its reasonable commercial efforts that Publisher Materials will not be modified, but only the format of the Publisher Materials as provided in a Mobile App will be changed as a result of the technical removal or addition of a functionality or element of a Como Platform from a Mobile App.
- 3.3 In the event that Como offers certain unique features or functionality such as, video search or music features as part of the Como Platform (each a "Unique Feature"), Publisher shall not modify, remove or interfere with Unique Features including, but not limited to the default settings and/or the definitions thereof.
- 4.1 Eligibility- In order to use the Submission Services, Publisher will enter into separate agreement with each of the application stores or marketplaces of mobile applications (the "Apps Store(s)") and thereby create an account or authorize Booker or Como to do so on its behalf. Once Publisher account with the relevant Apps Store is activated, it will be able to use the Submission Services.
- 4.2 License - Publisher hereby agrees to provide Como and Booker with its account login details with each of the applicable Apps Stores (the "Account Details"). By providing Como and Booker with the Account Details, Publisher hereby authorizes and grants Condit and Booker a right and license to (i) submit its Mobile App on Publisher’s behalf to the Apps Store(s) of its choice, (ii) upgrade or update its Mobile App resource files, to the extent such upgrade or update is applicable and/or requested by Publisher and/or the relevant App Store(s), and (iii) remove a Mobile App from the App Store. Publisher represents and warrants that it will provide Como and Booker with accurate Account Details and any additional information reasonably requested by Como or Booker for the purpose of performing the Submission Services.
- 4.3 Submission Services may include, at either Como’s or Booker’s sole discretion, and on a case by case basis, a review by Como or Booker of the Mobile App(s) and correspondence with Publisher prior to submission to the respective Apps Store or thereafter in the event of rejection.
- 4.4 During the Term of this Agreement, Como and Booker shall keep Publisher Account Details. Como and Booker will each use commercially reasonable efforts to safeguard Publisher Account Details.
- 4.5 Providing Submission Services shall not derogate from Publisher's undertakings under this Agreement, including for Mobile App Content and functionality. Publisher shall remain the developer of the Mobile App and therefore responsible to the Content that Publisher adds and/or make available to or in the Mobile App.
- 5.1 Publisher will not attempt to interfere with or disrupt the Como Platform or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Como Platform for Publisher's own use as permitted herein). Except as expressly specified in this Agreement, Publisher will not: (a) use, copy, create derivative works of or modify the Como Platform or any part thereof; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Como Platform to any other person or entity; or (c) use the Como Platform or a Mobile App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. Publisher will not disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Como Platform or a Mobile App or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
- 5.2 Publisher represents and warrants that the Publisher Materials do not contain, distribute or promote any Prohibited Activity or any Content that may be regarded as Prohibited Activity. In addition, Publisher shall not, nor shall it allow any other person or entity to: (a) create, distribute, promote or use a Mobile App by any means that constitute as Prohibited Activity; and (b) use in connection with a Mobile App or the Como Platform any Content generated by any other person or entity which is engaged in any Prohibited Activity.
- 5.3 Publisher represents and warrants that it shall not, and shall not allow any third party to: (i) engage in any Prohibited Activity in connection with or pertaining to a Mobile App or the Como Platform; (ii) use a Mobile App in any manner that constitutes Prohibited Activity; (iii) add to, post or make available via a Mobile App or the Como Platform any Prohibited Activity; or (iv) distribute a Mobile App from a website that offers, distributes or promotes Prohibited Activity or as part of a promotion that includes Prohibited Activity. In the event that Prohibited Activity pertaining to any Mobile App is detected, Publisher shall immediately remove and resolve such Prohibited Activity.
- 5.4 Without limiting any other terms of this Agreement, Publisher acknowledges and agrees that at any time during the Term, Como has the right, at its sole discretion (without notice to Publisher) to: (a) remove Prohibited Activity from a Mobile App or the Como Platform; (b) take any measures needed to prevent or correct Prohibited Activity (including, without limitations, upon receipt of claims, allegations from third parties or authorities relating to such Content); (c) assist any governmental agency or other applicable legal authorities with respect to any Prohibited Activity that was detected in or made available via a Mobile App or the Como Platform; and/or (d) report any Prohibited activity to any governmental agency or other applicable legal authority with respect to any Prohibited Activity.
- 5.5 Publisher shall not engage in and shall not encourage any other person or entity (including, without limitation and as applicable, End Users) to engage in Fraudulent Activity in connection with a Mobile App or the Como Platform. Without limiting any other terms of this Agreement or other remedies available to Como, in the event that Publisher or any other third party engages in any Fraudulent Activity, Como shall have the sole and exclusive right to disable a Mobile App, suspend the Publisher Account or take any other applicable measures at its sole discretion.
- 5.6 The Terms will be embedded in any Mobile App. Publisher shall: (a) abide by the Terms; (b) use its best commercial efforts to ensure that the End Users comply with the Terms; and (c) inform Como promptly of any known violation or breach thereof. Publisher shall not: (i) modify or change any of the terms contained in the Terms; (ii) distribute a Mobile App to End Users without making the Terms available to End Users or interfere with the provision of the Terms to End Users; or (iii) circumvent the requirement that the End Users accept the Terms by accessing, using and/or downloading a Mobile App. The foregoing is a material obligation of Publisher hereunder.
- 5.7 Publisher will not use the Como Platform or a Mobile App to offer, display, distribute, transmit, route, provide connections to or store any Content or any other material that infringes copyrighted works or otherwise violates or promotes the violation of the Intellectual Property Rights of any third party. Como has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. [The Como Copyright Policy is available at http://www.Como.com]. In compliance with the safe harbor provision(s) of the Digital Millennium Copyright Act of 1998 ("DMCA"), Como reserves the right to take down any and all Content posted via use of the Como Platform or a Mobile App at any time in its sole discretion. Without limiting other provisions herein, Publisher agrees to assist Como with any such compliance activities. Without limiting any other terms of this Agreement, if a Mobile App allows End Users to offer, display, distribute, transmit, route, provide connections to or store any material or includes services through which other users can do the same, Publisher will: (i) adopt a policy that complies with the eligibility requirements for the DMCA safe harbors; (ii) reasonably enforce and implement said policy; and (iii) satisfy all other DMCA requirements for safe harbor eligibility, including, but not limited to, responding expeditiously to remove, or disable access to, material that is claimed to be infringing or to be the subject of infringing activity upon receipt of notification of claimed copyright infringement from us or a third party, as required by the DMCA
- 5.10 Publisher shall not utilize the Como Platform, a Mobile App or any Mobile App component to create a security hole or to pose any kind of security threat to the End Users or any third party ("Security Breach"). A Security Breach may include, without limitation, creation, distribution, use or delivery of any of the following: spyware, programs designed to hijack cookies or stuff cookies (i.e. “parasiteware”), adware, programs designed to send unsolicited advertisements (i.e. "spamware"), viruses, services that send unsolicited advertisements, programs designed to hijack computers or hack into computers, malicious/exploiting of Content or components, programs designed to gain unauthorized access to networks on the Internet or private equipment of infrastructure and any other type of malware.
- 5.11 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 Como about such Security Breach or privacy violation and its applicable remedy.
- 5.12 Unless Publisher receives Como’s prior written approval, Publisher shall not use in connection with a Mobile App or any part thereof any privacy-or safety-related certification seal or mark that is hosted, obtained or provided by Como or by Como partners as part of the Como Platform or in connection with use of the Como Platform. If the Publisher Materials include any End User tracking capabilities, then Publisher represents and warrants that it shall strictly abide by Como’s requirements of proper disclosure to End Users and/or other guidelines with respect to usage of advance APIs as part of the Como Platform (such requirements may be published by Como from time online at http://www.como.com/privacy and/or via email newsletters, including without limitation the guidelines published here: http://www.como.com/Privacy/content-policy.aspx), which are incorporated herein by reference.
- 5.13 Publisher shall not distribute or promote a Mobile App by bundling or integrating a Mobile App installation file with any other application or software or as a part of a package of software or any other application without obtaining Como’s prior written approval. For the avoidance of doubt, the foregoing stipulation excludes the distribution or promotion of a Mobile App by integrating a Mobile App installation process with any web registration procedure, provided that publisher distribution channels will be compliant with any applicable law, regulation and industry standards (including indirect distribution via third parties).
- 5.14 Publisher acknowledges and agrees that in addition to compliance with this Agreement and all the Como policies incorporated herein, any distribution of a Mobile App on or from any third party platforms and/or services (the "Third Party Services") shall be subject to the respective terms and conditions maintained by the Third Party Services (by way of example only, such Third Party Services may include, Apple Store; Google Play or Amazon Appstore). Como is not responsible for any Third Party Services or use thereof. Additionally, unless Publisher receives Como’s prior written approval, Publisher shall not permit or authorize a third party to alter or modify any Mobile App.
- 5.15 In consideration for the Mobile App services provided hereunder, Publisher will pay Booker all fees set forth in an applicable order form to the Booker subscription services agreement entered into by and between Booker and Publisher ("Order Form" and "Booker Subscription Services Agreement" respectively). Publisher shall pay such fees strictly in accordance with the provisions of the Subscription Services Agreement and the applicable Order Form.
- 6.1 Publisher may not issue any press release or any other marketing materials regarding this Agreement without Como’s prior written approval. Publisher may advertise and promote the Mobile App(s), directly or through its cooperation with third parties, in its sole discretion ("Publisher Promotion"), provided that such Publisher Promotion does not and will not violate any applicable law, regulation and/or industry standards. The Publisher Promotion from the Publisher website shall include a link to the Mobile App(s) or a reference as to which Third Party Services the Mobile App(s) may be downloaded.
- 7.1 Except as expressly granted in this Agreement, as between Publisher and Como, Como retains all right, title and interest in and to the Como Platform and the Como’s Marks (except for the Publisher Materials) and any derivatives thereof, including any Intellectual Property Rights therein (collectively: "Como IP"). As between Como and Publisher, all use of the Como IP shall inure to the benefit of Como and Publisher shall not: (y) contest, or assist others to contest, Como’s rights or interests in and to the Como IP or the validity of Como’s rights in and to the Como IP and all applications, registrations or other legally recognized interests therein, or (z) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to said Como IP. All rights in the Como IP which are not expressly granted herein are reserved by Como. Publisher will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the Como Platform and Mobile App.
- 7.2 Except as expressly granted in this Agreement, as between Como and Publisher, Publisher retains all right, title and interest in and to the Publisher Materials and its Marks, and any derivatives thereof, including any Intellectual Property Rights therein (collectively, "Publisher IP"). As between Como and Publisher, all use of the Publisher IP shall inure to the benefit of Publisher and Como shall not: (y) contest, or assist others to contest, Publisher’s rights or interests in and to the Publisher IP or the validity of Publisher’s rights in and to the Publisher IP and all applications, registrations or other legally recognized interests therein, or (z) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to said Publisher IP. All rights in the Publisher IP which are not expressly granted herein are reserved by Publisher. Como will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the Publisher IP.
- 7.3 Publisher shall not assert any Intellectual Property Rights with respect to the Como Platform or any element, derivation, adaptation, variation or name thereof. Except permitted by this Agreement, a Mobile App shall not include and/or be promoted using any Intellectual Property Right of Como or its authorized third-party licensors, unless and to the extent that Como adds its own button, logo or any other branded element to a Mobile App or unless otherwise provided in this Agreement.
- 7.4 Publisher shall not remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on any Content provided by Como, whether available via a Mobile App or otherwise.
- 8.1 During the Term, Publisher may have access to certain non-public, proprietary, confidential and/or trade secret information of Como, whether written or oral, 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 (together: "Como’s Confidential Information"). Publisher agrees: (i) not to disclose any of Como’s Confidential Information to any third parties; (ii) not to use any of Como’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; and (iii) to keep Como’s Confidential Information confidential using the same degree of care Publisher uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care.
- 8.2 At any time during the Term, upon the written request of Como, Publisher shall return to Como, or destroy, in accordance with Como’s written instructions, all of Como’s Confidential Information in its possession, including any writing or recordings whatsoever prepared by Publisher based upon Como’s Confidential Information, and Publisher shall provide Como with a written certificate, signed by an authorized officer of Publisher, evidencing the complete and full execution of the provisions of this Section8.
- 8.3 Unauthorized disclosure or use of Como’s 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 Como shall be entitled to seek 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.
- 8.4 Publisher acknowledges and agrees that Como may provide to the applicable authorities or any court of competent jurisdiction information contained in or related to the Publisher Account in the event that Como is required by legal process, order of any court of competent jurisdiction, or any applicable law, rule or regulation to provide such information.
- 8.5 Publisher shall keep in strict confidence and shall not disclose to any third party any of Como’s Confidential Information during the Term hereunder and for a period of three (3) years following the termination of this Agreement.
- 9.1 Como represents and warrants that it will use commercially reasonable efforts to perform its obligations hereunder. Como is not responsible for and does not provide any warranty with respect to any Content (including, without limitation, Content part of a Mobile App, TPC, End User Content or Publisher Materials) or any third-party sites that can be linked through the Como Platform or a Mobile App. Further, Como does not guarantee that any Content (including, without limitation, TPC, End User Content or Publisher Materials) will be made available through a Mobile App, the Como Platform, continuously or at all. WHILE COMO IS UNDER NO OBLIGATION TO DO SO, WITHOUT LIMITING ANY OTHER TERMS OF THIS AGREEMENT, COMO RESERVES THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM ANY APPLICATION(S) OR MOBILE APP(S) WITHOUT NOTICE IN THE EVENT SUCH CONTENT IS PROVIDED IN VIOLATION OF THE TERMS OF THIS AGREEMENT. Como does not have any obligation to monitor the End User Content or the Publisher Materials that are uploaded, posted, submitted or otherwise transmitted using a Mobile App or otherwise, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the End User Content, Publisher Materials or anything said, depicted or written by Publishers or End Users, including, without limitation, any information obtained by using any Mobile App. Como does not endorse any End User Content or Publisher Materials or any opinion, recommendation or advice expressed therein and Publisher agrees to waive, and hereby does waive, any legal or equitable rights or remedies Publisher has or may have against Como with respect thereto.
- 9.2 Como does not make any representation with respect to so-called “open source” or free software that may be included in the Como Technology. Any open source software that may be accompanying the Como Platform is licensed to you in accordance with the applicable open source license or copyright notice accompanying such open source software and Como hereby disclaims any and all liability to you or any third party related thereto.
- 9.3 THE COMO PLATFORM AS WELL AS ANY MOBILE APPS ARE PROVIDED BY COMO "AS IS". EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULLEST EXTENT ALLOWABLE BY LAW, COMO 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, OR THOSE ARISING IN THE COURSE OF OR CONNECTED TO THE PERFORMANCE HEREUNDER, AND DISCLAIMS SUCH WARRANTIES. IN ADDITION, COMO DOES NOT REPRESENT OR WARRANT THAT: (I) THE COMO PLATFORM OR ANY OF ITS PRODUCTS, SERVICES OR SOFTWARE WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE COMO Platform OR ANY OF ITS PRODUCTS, SERVICES OR SOFTWARE WILL BE UNINTERRUPTED; (III) PUBLISHER WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM PUBLISHER’S USE OF THE COMO PLATFORM OR ANY MOBILE APP; OR (IV) ANY MOBILE APP OR ANY CONTENT WILL BE MADE AVAILABLE VIA THE COMO PLATFORM OR OTHERWISE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
- 10.1 Publisher (the "Indemnifying Party") shall defend, hold harmless, and indemnify Como, Booker and/or either of their subsidiaries, affiliates, directors, officers, employees, agents, successors and permitted assignees (collectively "Indemnified Party"), 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") brought or made by any third party against the Indemnified Party arising out of: (a) a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under this Agreement; (b) any use of the Como Platform and/or a Mobile App in any manner inconsistent with or in breach of this Agreement; (c) violation of End User’s privacy rights or the creation of a Security Breach by Publisher; or (d) the End Users' use of a Mobile App.
- 10.2 The Indemnified Party shall: (a) promptly notify the Indemnifying Party of such Claim; provided that a failure to give such prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Article, (b) provide the Indemnifying Party, at the cost of the Indemnifying Party, with reasonable information, assistance and cooperation in defending the lawsuit or Claim, and (c) give the Indemnifying Party full control and sole authority over the defense and settlement of such Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior approval and provided further that the parties will discuss in good faith in the defense strategy of any Claim that (i) relates to any Como Technology, (ii) involves any relief other than monetary damages is sought against Indemnified Party, (iii) presents a conflict of interest between the Indemnifying Party and Indemnified Party in the conduct of the defense, or (iv) settlement of, or an adverse judgment with respect to, such Claim could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of Indemnified Party, and in such events the costs of defense will be considered "Claims" as defined above. The Indemnified Party may join in the defense of such Claim with counsel of its choice at its own expense. If any of the foregoing situations set forth in Section 10.2 (c)(i)-(iv) above occurs, Como will have the exclusive right to dismiss Publisher of its indemnification obligation herein and assume control over the defense of the Claim, and Publisher shall have no further obligations or expenses under this Section 10 with respect to such Claim.
- IN NO EVENT WILL COMO AND ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR BOOKER BE LIABLE TO PUBLISHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE CONFIGURATION, INSTALLATION, DISTRIBUTION, DISPLAY OR USE OF OR INABILITY TO USE THE COMO PLATFORM OR A MOBILE APP UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT COMO OR ITS THIRD PARTY LICENSORS WERE 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 COMO’S, BOOKER’S OR ITS THIRD PARTY LICENSORS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE REVENUES GENERATED FROM PUBLISHER DURING A TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
- 12.1 This Agreement 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 or expired as provided herein (the "Term").
- 12.2 Either party may terminate this Agreement at any time by written notice to the other party for any reason and without liability for such termination.
- 12.3 This Agreement will automatically and immediately expire or terminate: (i) at such time that the agreement between Como and Booker relating to the usage of the respective Mobile App(s) is terminated or expires; and/or (ii): upon the elapse of thirty (30) days as of the date in which Publisher closed its Publisher Account.
- 12.4 Como may immediately suspend the Publisher Account or the functionality of certain Mobile App(s) or any service thereof, or terminate this Agreement and deactivate a Mobile App, in any one of the following instances: (a) if Publisher breaches any obligation, representation and/or warranty contained in this Agreement; (b) if Publisher engages in any acts prohibited by this Agreement; (c) if Publisher engages in any action that, in Como’s sole discretion, reflects poorly on Como or otherwise disparages or devalues Como’s reputation or goodwill; (d) if Como is required to suspend or deactivate certain service in accordance with any applicable law or due to a court or governmental order; (e) if Publisher 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 any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within thirty (30) days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. If Publisher becomes subject to any of the events described in this clause (e) it shall immediately notify Como in writing; or (f) if Como reasonably determines that it is commercially impractical for Como to continue supporting a Mobile App and the Como Platform under the terms of this Agreement as a result of legal, business or technical considerations.
- 12.5 Upon the termination or expiration of this Agreement for any reason: (a) all rights and licenses granted hereunder by each party shall cease immediately, provided, however, that in the event that Publisher Materials remain in any Mobile App, Como shall have the right to transmit, display or modify such Publisher Materials for as long as a Mobile App is in use by any End User or until the End User removes the Mobile App from his/her mobile device; (b) Publisher shall promptly return to Como, or destroy and certify the destruction of, all of Como’s Confidential Information, in accordance with Section 11; (c) Publisher’s rights to use the Como Platform or any part thereof in connection therewith and a Mobile App, as permitted under this Agreement, shall cease immediately; (d) Publisher shall immediately cease using the download link to any Mobile App; and (e) Como shall have the exclusive right to modify a Mobile App or remove any Mobile App from the Como Platform and/or disable any Mobile App. Como will not be liable to Publisher or any third party for termination of this Agreement or termination of Publisher’s access to the Como Platform or a Mobile App. UPON ANY TERMINATION OR SUSPENSION, ANY PUBLISHER MATERIALS OR INFORMATION WHICH IS RELATED TO THE PUBLISHER ACCOUNT MAY NO LONGER BE ACCESSED BY PUBLISHER. Furthermore, Como will have no obligation to maintain any information stored in its data centers related to the Publisher Account or to forward any information to Publisher or any third party.
- 12.6 Following the termination of this Agreement, any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination of this Agreement (including Sections 5.15, 7, 8, 10, 11, and 13 and this Section 12.6), shall be deemed to survive for as long as necessary to fulfill such purposes.
- 13.1 Additional Terms. Certain elements of the Como Platform or other services or programs offered by Como may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions (the "Additional Terms") in order to use or access them. If there is a conflict between the terms of this Agreement and the Additional Terms this Agreement will take precedence. Additionally, if you use the Content Sharing Services (defined below) to share, distribute or use materials via the Como Platform you agree to be bound by the terms of the Como Content Sharing Terms of Service available at http://www.Como.com, which are incorporated herein by reference.
- 13.2 Modification. Como reserves the right to modify, suspend, discontinue or terminate Como Platform and/or the submission services, to update or terminate this Agreement at any time and without prior notice. If Como updates this Agreement it will post the update on its website or provide you with notice of the update. However, it is Publisher’s responsibility to review the Agreement from time to time-to-time to check for updates. Como will also update the "Last Updated Date" at the bottom of the page. By continuing to access or use a Mobile App, any TPC, any Como Platform or your Publisher Account after Como has posted an update on its website or has provided Publisher with notice of an update, Publisher agrees to be bound by the updated Agreement. If the updated Agreement is not acceptable to Publisher, Publisher’s only recourse is to send us a request to deactivate your account or to cease using the Mobile App or the Como Platform. Publisher can review the most current version of this Agreement at any time at: http://www.Como.com/.
- 13.3 Eligibility for Entering this Agreement. To enter this Agreement and/or receive Submission Services, Publisher must be at least 18 years old or the legal age of majority in the jurisdiction in which Publisher resides.
- 13.4 All rights which are not expressly granted herein are reserved by Como. Publisher may not make any use of the Como Platform in whole or in part in any manner not expressly permitted by this Agreement
- 13.5 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any other prior or collateral agreements with respect to the subject matter hereof, whether oral or written.
- 13.6 Neither this Agreement nor any interest herein may be assigned by Publisher or any obligations of Publisher delegated without the prior written consent of Como. Any attempted unauthorized assignment or delegation shall be null and void. Como may assign or transfer this Agreement or any rights or delegate any obligations of Como hereunder without Publisher's consent. Como will be released of all rights or liabilities under this Agreement upon consummation of such assignment, transfer or delegations.
- 13.7 This Agreement shall be binding on and inure to the benefit of each of the parties and their respective successors and assignees. This 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 this Agreement.
- 13.8 This Agreement will be governed by and construed under the laws of New York, USA, excluding its conflict of law rules and principles. Each party agrees to submit to the personal and exclusive jurisdiction of the federal and state courts located in New York County, New York, USA. 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.
- 13.9 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.
- 13.10 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.
- 13.11 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.
- 13.12 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.
- 13.13 All notices required or permitted under this Agreement shall be in English and in writing and shall be delivered (a) to Como - by facsimile, e-mail or other electronic means, by registered or certified mail (postage prepaid) or by overnight courier service, at the address 5 Golda Meir Street, Nes Ziona 74149, Israel (Attn: Conduit Ltd. – legal department) or at such other address as Como shall have furnished to Publisher in writing. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via facsimile or e-mail, (iii) within one (1) business day of being sent by overnight courier, or (iv) within three (3) business days of being sent by registered or certified mail, and (b) to Publisher - to the e-mail address provided by Publisher in connection with its Publisher Account. For purposes of the foregoing, Como shall be permitted to rely upon the e-mail address provided by Publisher to Como as provided above and shall not be responsible for delays in the delivery of e-mails which delays are not associated with Como’s mail server.