1. DEFINITIONS.
For the purpose of this Agreement, the following capitalized terms shall have the following meanings:

1. 1.1. "Application(s)" means any software application generated or administered by Publisher via its use of the Wibiya Technology in compliance with the terms and conditions of this Agreement, for use on the internet, mobile phone and/or any other current or future platform or media. For example, an Application may be a Toolbar (as defined below) or a Wibiya powered application, both of which may be made available to End Users.
2. 1.2. "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.
3. 1.3. "End User" means an individual user who visits the Publisher Website.
4. 1.4. "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).
5. 1.5. "Publisher" means an individual or entity that creates, implements and/or administers an Application.
6. 1.6. "Publisher Materials" means any Content provided or used by Publisher in connection with an Application, including that which a Publisher adds to any part of the Wibiya Technology, the TPC, or the Publisher Website(s), including any new releases or new versions thereof and any Updates thereto.
7. 1.7. "Publisher Website(s)" means the domain in which an Application will reside.
8. 1.8. "Third Party Content" or TPC means any third party Content and technology that is offered, distributed or promoted in or from the Wibiya Technology.
9. 1.9. "Toolbar" means a web based toolbar created and/or customized by Publisher via its use of the Wibiya Technology in compliance with the terms and conditions of this Agreement.
10. 1.10. "Updates" means bug fixes, error corrections and patches; and does not include new versions or new releases.
11. 1.11. "Wibiya" means Modular Patterns, Ltd. d/b/a Wibiya.
12. 1.12. "Wibiya Privacy Policy" (which policy can be found at: http://wibiya.conduit.com/Privacy) means the privacy policy provided by Wibiya that governs the collection, use and/or disclosure by Wibiya of the Publisher’s and the End Users’ information, as a result of their use of an Application and/or the services therein.
13. 1.13. "Wibiya Technology" means Wibiya’s proprietary Applications generating platform and any other products and services provided by Wibiya therein or in connection thereto for use on the internet, mobile phone and/or any other current or future platform or media (whether owned by Wibiya or licensed by it) including, but not limited to, software and tools provided by Wibiya to Publisher which enable the implementation and administration of the Toolbar and/or Application(s) in connection with the Wibiya Technology, but not including TPC.

2. MODIFICATIONS.
Wibiya reserves the right to modify, discontinue or terminate the Wibiya Technology or the TPC (collectively, the "Wibiya Platform") or to modify this Agreement at any time and without prior notice. If Wibiya modifies this Agreement it will post the modification on its website or provide you with notice of the modification. However, it is Publisher’s responsibility to review the Agreement from time to time-to-time to check for updates. Wibiya will also update the "Last Updated Date" at the bottom of the page. By continuing to access or use an Application, any TPC, any Wibiya Technology or your Publisher Account after Wibiya has posted a modification on its website or has provided Publisher with notice of a modification, Publisher agrees to be bound by the modified Agreement. If the modified Agreement is not acceptable to Publisher, Publisher’s only recourse is to cease using the Application or the Wibiya Platform. Publisher can review the most current version of this Agreement at any time at: http://wibiya.conduit.com.

3. APPLICATION CUSTOMIZATION.

1. 3.1. In connection with registration with Wibiya as a Publisher, Publisher will be provided with or may chose a username and password with which Publisher shall be able to access its online account available on http://wibiya.conduit.com, from which Publisher can use elements of the Wibiya Platform (the "Publisher Account"). Publisher agrees to provide accurate, current and complete information during the registration process and to keep such information up to date. Wibiya reserves the right to suspend or terminate the Publisher Account if in Wibiyas’ 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 Wibiya in writing of any unauthorized and/or fraudulent use of its Publisher Account, an Application or its username or password. For purposes hereof, Publisher's identifying details will be those provided by it during the registration process for creating its first Application hereunder or as may be updated during the Term (as defined below) subject to Wibiya’s prior written approval. To the extent applicable, Publisher may create additional Applications by using any tools and/or features available in the Publisher Account.
2. 3.2. Wibiya 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 Wibiya Platform; and (b) add, change or remove any Content, materials and/or functionality made available in any Application or in the Wibiya Platform at any time, with or without reason. For example, Wibiya may change the settings and/or appearance of any part of the Wibiya Technology or any elements thereof which may be provided in an Application or otherwise, without prior notice or Wibiya may provide any Updates, new versions, new releases and upgrades to any Wibiya Technology or any other elements thereof. Notwithstanding the foregoing, the Publisher Materials will not be modified, but the format of the Publisher Materials as provided in an Application may change as a result of the technical removal or addition of a functionality or element of a Wibiya Technology from an Application.
3. 3.3. In the event that Wibiya offers certain unique features or functionality such as, weather app or music features as part of the Wibiya 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. LICENSE AND RESTRICTIONS.

1. 4.1. Subject to the terms and conditions of this Agreement, Wibiya hereby grants to Publisher a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable license or sublicense, as applicable, during the Term to: (a) use the software and tools that are provided as part of the Wibiya Technology to create and implement an Application; (b) administer an Application; and (c) access and use the Wibiya Platform to the extent permitted hereof. All rights which are not expressly granted herein are reserved by Wibiya. Publisher may not make any use of the Wibiya Platform in whole or in part in any manner not expressly permitted by this Agreement.
2. 4.2. Publisher hereby grants to Wibiya and its corporate affiliates a worldwide, royalty free, non-exclusive right and license (with the right to sublicense) to: (a) use, reproduce, modify, distribute, perform, transmit, display and access the Publisher Materials which Publisher has added to the Wibiya Platform solely for the purposes of making the Publisher Materials available in an Application, promoting an Application and implementing any changes or updates to an Application as set forth herein; (b) distribute the Publisher Materials; and (c) access and query an Application as set forth in this Agreement, including without limitation to run any queries necessary to confirm Publisher’s compliance with the terms and conditions of this Agreement or to implement any changes or updates to an Application as set forth in Article 3. In the event that Publisher wishes to exclude the Publisher Materials from any such promotion or distribution, Publisher shall notify Wibiya via the “Contact Us” link which is available at its Publisher Account.
3. 4.3. Publisher will not attempt to interfere with or disrupt the Wibiya Platform or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Wibiya 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 Wibiya Platform or any part thereof; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Wibiya Platform to any other person or entity; or (c) use the Wibiya Platform or an Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. Publisher agrees not to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Wibiya Platform or an Application 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. PROMOTION AND MARKETING.

1. 5.1. Publisher may not issue any press release or any other marketing materials regarding this Agreement without Wibiya’s prior written approval.
2. 5.2. Publisher agrees that Wibiya may: (a) feature an Application in different marketing outlets and/or collateral, including without limitation newsletters, case studies, email or advertisement campaigns and web pages; (b) indentify Publisher as a user of the Wibiya Technology on Wibiya websites, client lists, press releases, and in other marketing; and (c) publish a brief description and/or case study highlighting Publisher’s deployment of an Application and use of the Wibiya Technology (each a "Wibiya Promotion"). In the event that Publisher wishes to be excluded from a specific Wibiya Promotion, Publisher shall notify Wibiya in writing via the “Contact Us” link or the support forum both of which are available at its Publisher Account. Unless otherwise agreed by parties, Publisher shall not be entitled to any compensation as a result of any Wibiya Promotion.
3. 5.3. Subject to the terms and conditions of this Agreement, each party grants to the other party a limited, worldwide, non-sublicensable, non-exclusive license to use the other party’s Marks solely to engage in the marketing and promotional activities set forth in this Agreement. "Marks" mean trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered. Any use by one party of a Mark of the other party must be in accordance with applicable law and with respect to Wibiya, solely in accordance with Wibiya’s Trademark Policy (which is found at: http://wibiya.conduit.com). Each party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from such party’s use of a Mark of the other party as permitted hereunder will inure solely to the benefit of the other party.

6. PUBLISHER UNDERTAKING.

1. 6.1. 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 an Application by any means that constitute as Prohibited Activity; and (b) use in connection with an Application or the Wibiya Platform any Content generated by any other person or entity which is engaged in any Prohibited Activity.
2. 6.2. The term "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 law, including, without limitation, the Children’s Online Privacy Protection Act of 1998; (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; or (iii) materially interferes or disrupts Web navigation or browsing; or (iv) enhances or modifies Web pages (and/or Content on such Web pages) visited by End Users and controlled by third parties without the End Users’ prior consent and without Wibiya’s express approval; (b) usage which adversely affects public or private infrastructure or equipment; (c) Fraudulent Activity (defined below); (d) 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 Wibiya in its sole discretion; or (e) redirecting traffic or replacing web pages available with an Application to web pages which promote Content or products which may adversely affect use of the Application and/or violate any of the prohibitions contained herein.
3. 6.3. 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 an Application or the Wibiya Platform; (ii) use an Application in any manner that constitutes Prohibited Activity; (iii) add to, post or make available via an Application or the Wibiya Technology any Prohibited Activity; or (iv) add an Application to a website that offers, distributes or promotes Prohibited Activity. In the event that Prohibited Activity pertaining to any Application is detected, Publisher shall immediately remove and resolve such Prohibited Activity.
4. 6.4. Without limiting any other terms of this Agreement, Publisher acknowledges and agrees that at any time during the Term, Wibiya has the right, at its sole discretion (without notice to Publisher) to: (a) remove Prohibited Activity from an Application or the Wibiya 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 an Application or the Wibiya Platform; and/or (d) report any Prohibited activity to any governmental agency or other applicable legal authority with respect to any Prohibited Activity.
5. 6.5. 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 an Application or the Wibiya Platform. Without limiting any other terms of this Agreement or other remedies available to Wibiya, in the event that Publisher or any other third party engages in any Fraudulent Activity, Wibiya shall have the sole and exclusive right to disable an Application, suspend the Publisher Account or take any other applicable measures at its sole discretion.
6. 6.6. The term "Fraudulent Activity" means any of the following activities: (a) initiating or using a promotion in connection with an Application which violates any applicable law or regulation, or an existing agreement between Publisher and Wibiya or which is not consistent with industry standards and good practices; (b) hacking an Application or the Wibiya Platform or any part thereof, or using an Application or the Wibiya Platform in order to hack into public or private infrastructure or equipment; (c) using in connection with an Application or the Wibiya 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.
7. 6.7. Publisher will not use the Wibiya Platform or an Application 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. Wibiya 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 Wibiya Copyright Policy is available at http://wibiya.conduit.com. In compliance with the safe harbor provision(s) of the Digital Millennium Copyright Act of 1998 ("DMCA"), Wibiya reserves the right to take down any and all Content posted via use of the Wibiya Platform or an Application at any time in its sole discretion. Without limiting other provisions herein, Publisher agrees to assist Wibiya with any such compliance activities. Without limiting any other terms of this Agreement, if an Application 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. Additionally, Wibiya in its sole discretion may terminate this Agreement in the event that it has reason to believe Content on the Publisher Website(s) is infringing the Intellectual Property Rights of any third party.
8. 6.8. Wibiya is committed to protecting the privacy and security of End Users’ information and requires web publishers, Content providers and other third parties that use the Wibiya Platform to do the same. Publisher shall abide by and comply with the Wibiya Privacy Policies with respect to and in connection with Publisher’s use of the Wibiya Platform and an Application. Publisher represents and warrants that it shall: (a) not use the Wibiya Platform or an Application in any manner that may harm the privacy rights of End Users or other third parties, and (b) not collect, transmit, copy, use or commercialize in any manner any End User personally identifiable information. Publisher agrees that: (a) the Publisher Website privacy policies and/or any activities undertaken by it will not be inconsistent with the terms of the Conduit Privacy Policies as applicable to an Application; (b) Publisher will make no representations, warranties or agreements on behalf of Wibiya in the Publisher privacy policies; and (c) Wibiya will not be responsible for, nor have any liability with respect to: (x) any agreement between Publisher and an End User or an End User’s breach of the Publisher privacy policies; (y) Publisher’s failure to provide any Publisher privacy policies and/or to obtain valid consent to any Publisher privacy policies from End Users; or (z) Publisher’s failure to comply with the terms and conditions of the Publisher’s privacy policies. To the extent applicable, the Wibiya Privacy Policy shall be made available to End Users as part of an Application.
9. 6.9. Publisher shall not modify the Wibiya Privacy Policy or remove or circumvent the Wibiya Privacy Policy as offered as part of an Application to End Users. Publisher will also provide the End User with the opportunity to actively choose whether to share his/her personal data with the Publisher or not.
10. 6.10. Publisher shall not utilize the Wibiya Platform, an Application or any Application component to create a security hole or to pose any kind of security threat to the End Users or any third party ("Security Breach"). 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 Wibiya about such Security Breach or privacy violation and its applicable remedy.
11. 6.11. Publisher shall not utilize any web search services, functionality and/or features in an Application without obtaining Wibiya’s prior written approval.
12. 6.12. Some Applications on the Wibiya Platform are currently provided free of charge but may not always be free of charge. Publisher acknowledges and agrees that it will not receive any compensation or cash payment from Wibiya in connection with this Agreement or otherwise (including, but not limited to as the result of the creation, implementation or administration of an Application), unless explicitly agreed to by Wibiya in writing.

7. PROPRIETARY RIGHTS.

1. 7.1. Except as expressly granted in this Agreement, as between Publisher and Wibiya, Wibiya retains all right, title and interest in and to the Wibiya Platform, Wibiya’s Marks and the TPC Marks (except for the Publisher Materials) and any derivatives thereof, including any Intellectual Property Rights therein(collectively, the “Wibiya IP”). As between Wibiya and Publisher, all use of the Wibiya IP shall inure to the benefit of Wibiya and Publisher shall not: (y) contest, or assist others to contest, Wibiya’s rights or interests in and to the Wibiya IP or the validity of Wibiya’s rights in and to the Wibiya 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 Wibiya IP. All rights in the Wibiya IP which are not expressly granted herein are reserved by Wibiya. Publisher will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the Wibiya Platform and Application.
2. 7.2. Except as expressly granted in this Agreement, as between Wibiya 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.
3. 7.3. Publisher shall not assert any Intellectual Property Rights with respect to the Wibiya Platform or any element, derivation, adaptation, variation or name thereof. Except as set forth in Article 5 above, an Application shall not include and/or be promoted using any Intellectual Property Right of Wibiya or its authorized third-party licensors, unless and to the extent that Wibiya adds its own button, logo or any other branded element to an Application or unless otherwise provided in this Agreement.
4. 7.4. Publisher shall not remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on any on any Content provided by Wibiya, whether available via an Application or otherwise.

8. CONFIDENTIALITY.

1. 8.1. During the Term, Publisher may have access to certain non-public, proprietary, confidential and/or trade secret information of Wibiya, 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, the "Confidential Information"). Publisher agrees: (i) not to disclose any of Wibiya’s Confidential Information to any third parties; (ii) not to use any of Wibiya’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; and (iii) to keep Wibiya’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.
2. 8.2. At any time during the Term, upon the written request of Wibiya, Publisher shall return to Wibiya, or destroy, in accordance with Wibiya’s written instructions, all of Wibiya’s Confidential Information in its possession, including any writing or recordings whatsoever prepared by Publisher based upon Wibiya's Confidential Information, and Publisher shall provide Wibiya with a written certificate, signed by an authorized officer of Publisher, evidencing the complete and full execution of the provisions of this Article 8.
3. 8.3. Unauthorized disclosure or use of Wibiya’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 Wibiya 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.
4. 8.4. Publisher acknowledges and agrees that Wibiya 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 Wibiya is required by legal process, order of any court of competent jurisdiction, or any applicable law, rule or regulation to provide such information.
5. 8.5. Publisher shall keep in strict confidence and shall not disclose to any third party any of Wibiya’s Confidential Information during the Term hereunder and for a period of three (3) years following the termination of this Agreement.

9. REPRESENTATIONS AND WARRANTIES.

1. 9.1. By Wibiya. Wibiya represents and warrants that it will use commercially reasonable efforts to perform its obligations hereunder. Wibiya is not responsible for and does not provide any warranty with respect to any Content (including, without limitation, Content part of an Application, TPC, End User Content or Publisher Materials) or any third-party sites that can be linked through the Wibiya Platform or an Application. Further, Wibiya does not guarantee that any Content (including, without limitation, TPC, End User Content or Publisher Materials) will be made available through an Application, the Wibiya Platform, continuously or at all. WHILE WIBIYA IS UNDER NO OBLIGATION TO DO SO, WITHOUT LIMITING ANY OTHER TERMS OF THIS AGREEMENT, WIBIYA RESERVES THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM ANY APPLICATION WITHOUT NOTICE IN THE EVENT SUCH CONTENT IS PROVIDED IN VIOLATION OF THE TERMS OF THIS AGREEMENT. Wibiya does not have any obligation to monitor the End User Content or the Publisher Materials that are uploaded, posted, submitted or otherwise transmitted using an Application 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 Application. Wibiya 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 Wibiya with respect thereto. Wibiya does not make any representation with respect to so-called “open source” or free software that may be included in the Wibiya Platform. Any open source software that may be accompanying the Wibiya Technology is licensed to you in accordance with the applicable open source license or copyright notice accompanying such open source software and Wibiya hereby disclaims any and all liability to you or any third party related thereto. THE WIBIYA PLATFORM AS WELL AS ANY APPLICATIONS ARE PROVIDED BY WIBIYA "AS IS". EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULLEST EXTENT ALLOWABLE BY LAW, WIBIYA 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, WIBIYA DOES NOT REPRESENT OR WARRANT THAT: (I) THE WIBIYA 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 WIBIYA TECHNOLOGY 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 WIBIYA PLATFORM OR ANY APPLICATION; OR (IV) ANY APPLICATION OR ANY CONTENT WILL BE MADE AVAILABLE VIA THE WIBIYA 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.
2. 9.2. By Publisher. Publisher represents and warrants that: (a) it has all requisite power and authority to execute this Agreement and perform its obligations hereunder and this Agreement is a valid and binding agreement by it; (b) the execution and delivery of this Agreement, and the performance by it of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which such party or any of its affiliates are a party or violate any rights of any third parties arising therefrom; (c) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations, including, without limitation, data privacy laws, rule and regulations; (d) the Publisher Materials are and will be wholly owned or validly and legally licensed for use as contemplated by this Agreement during the Term or are in the public domain and do not and will not, at any time during the Term, infringe or violate any Intellectual Property Rights or any other rights of any person or entity(e) as between Publisher and Wibiya, Publisher is solely responsible for the Publisher Materials, the End User Content and any Content or technology embedded in an Application by Publisher or otherwise made available via an Application by Publisher; (f) Publisher will comply with this Agreement, the Wibiya Privacy Policies, as shall be amended from time to time; and (g) Publisher shall not bind Wibiya to any agreement or obligation or give any representation, warranty or guarantee with respect to Wibiya, except for those that are specifically authorized by Wibiya in advance and in writing; and (h) Publisher will only use the Wibiya Platform purposes and in the manner expressly permitted by this Agreement and in accordance with all applicable laws and regulations.

10. INDEMNIFICATION.

1. 10.1. Publisher (the "Indemnifying Party") shall defend, hold harmless, and indemnify Wibiya, and/or its 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 Wibiya Platform or an Application 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 an Application.
2. 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 Indemnified Party shall not be required to allow Indemnifying Party to assume the control of the defense of a Claim to the extent that Indemnified Party determines that (i) such claim relates to any Wibiya Technology, (ii) any relief other than monetary damages is sought against Indemnified Party, (iii) there may be 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.

11. LIMITATION OF LIABILITY.
IN NO EVENT WILL WIBIYA AND ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS 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 USE OF OR INABILITY TO USE THE WIBIYA PLATFORM OR AN APPLICATION UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT WIBIYA 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 WIBIYA’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 FIVE HUNDRED DOLLARS (US $500.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.

12. TERM AND TERMINATION.

1. 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 as provided herein (the "Term").
2. 12.2. Either party may terminate this Agreement upon five (5) days' prior written notice to the other party for any reason and without liability for such termination.
3. 12.3. Wibiya may immediately suspend the Publisher Account or terminate this Agreement and disable an Application, 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 Wibiya’s sole discretion, reflects poorly on Wibiya or otherwise disparages or devalues Wibiya’s reputation or goodwill; (d) 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 Wibiya in writing; or (f) if Wibiya reasonably determines that it is commercially impractical for Wibiya to continue supporting an Application and the Wibiya Platform under the terms of this Agreement as a result of legal, business or technical considerations.
4. 12.4. Upon the termination of this Agreement for any reason: (a) all rights and licenses granted hereunder by each party shall cease immediately; (b) Publisher shall promptly return to Wibiya, or destroy and certify the destruction of, all of Wibiya’s Confidential Information, in accordance with Section 8.2; (c) Publisher’s rights to use the Wibiya Platform or any part thereof in connection therewith and an Application, as permitted under this Agreement, shall cease immediately; (d) Publisher shall immediately remove the Application(s) and/or other related Wibiya services and features from the Publisher Website(s); and (e) Wibiya shall have the exclusive right to modify an Application or remove any Application from the Wibiya Technology and/or disable any Application. Wibiya will not be liable to Publisher or any third party for termination of this Agreement or termination of Publisher’s access to the Wibiya Technology or an Application. 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, Wibiya 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.
5. 12.5. 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 Articles 1, 6, 7, 8, 10, 11 and 13, and Section 3.2 and this Section 12.5), shall be deemed to survive for as long as necessary to fulfill such purposes.

13. MISCELLANEOUS.

1. 13.1. 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.
2. 13.2. Publisher may not assign its rights and/or delegate its obligations under this Agreement without Wibiya’s prior written consent. This Agreement shall be binding on and inure to the benefit of each of the parties and their respective successors and assignees. This Agreement 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.
3. 13.3. This Agreement will be governed by and construed under the laws of the State of New York, excluding its conflict of law rules and principles, and applicable federal U.S. laws shall govern this Agreement. Each party agrees to submit to the personal and exclusive jurisdiction of the courts of New York State, located in New York, New York and the Federal courts of the Southern District of New York. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
4. 13.4. 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.
5. 13.5. 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.
6. 13.6. 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.
7. 13.7. 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.
8. 13.8. All notices required or permitted under this Agreement shall be in English and in writing and shall be delivered (a) to Wibiya: at Wibiya's address for receipt of notices which is, 5 Golda Meir Street, Ness-Ziona, 74140 Israel - by facsimile, e-mail or other electronic means, by registered or certified mail (postage prepaid) or by overnight courier service, or at such other address as Wibiya 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, Wibiya shall be permitted to rely upon the e-mail address provided by Publisher to Wibiya as provided above and shall not be responsible for delays in the delivery of e-mails which delays are not associated with Wibiya’s mail server.

Last updated November 28, 2011