PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT (THE "AGREEMENT") BEFORE USING SIMPLYGEN'S TECHNOLOGY OR APPLICATIONS. THIS IS A LEGAL AGREEMENT BETWEEN SIMPLYGEN AND YOU AS A "PUBLISHER" (AS FURTHER DEFINED BELOW).

 

BY SELECTING THE CHECK BOX NEXT TO THE SENTENCE THAT SAYS, "I AGREE TO THE TERMS AND CONDITIONS OF THE PUBLISHER AGREEMENT" OR BY CREATING AN APPLICATION YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT AND AGREE THAT SIMPLYGEN WILL TREAT YOU AS A SIMPLYGEN DISTRIBUTOR FROM THAT POINT ONWARDS. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE SIMPLYGEN'S TECHNOLOGY. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT. FURTHER, YOU CONSENT TO THE USE OF: (A) ELECTRONIC MEANS TO WE RECOMMENDS THAT YOU PRINT OUT OR SAVE A LOCAL COPY OF THE AGREEMENT FOR YOUR RECORDS.

 

SimplyGen develops and markets a search enhancement software for searches in internet websites, including an in-site search application with auto complete capabilities, and presentation of related content, sponsored content and hyperlinks served to the user while typing the search query (the "SimplyGen Products").

 

Distributor develops and/or markets software products and applications.

 

SimplyGen and Distributor wish to cooperate in a contractual relationship, pursuant to which Distributor shall market, offer and distribute the SimplyGen Products to clients and prospect clients of Distributor, all subject to the terms and conditions herein contained.

 

NOW THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants hereinafter contained, the parties intending to be legally bound hereby agree as follows:

 

    1.              Appointment of Distributor

1.1.                                    Subject to the terms and conditions of this Agreement, SimplyGen hereby appoints Distributor as a non-exclusive authorized distributor of the SimplyGen Products to clients and prospect clients of Distributor. The SimplyGen Products shall be marketed and offered as stand alone products, independently installed on users' web browsers (software applications for retrieving, presenting, and traversing information resources on the internet), and may also, subject to coordination and agreement between SimplyGen and Distributor, also be marketed and offered as products included within, in conjunction with, or bundled with, other products marketed by Distributor ("Distributor Products").

1.2.                                    Distributor may promote and market the SimplyGen Products only in accordance with any terms, conditions, guidelines and policies dictated by SimplyGen, as they may be updated or revised from time to time, at SimplyGen's discretion. Without derogating from the aforesaid, any promotion, marketing or other activities taken by Distributor must be in full compliance with, and without any violation of, any laws, regulations, directives and other requirements which may apply in any jurisdiction in which such activities may take place or the laws of which may apply thereto. Distributor shall not present itself to be part of SimplyGen or as authorized by SimplyGen to make any representations, warranties or undertakings on behalf of SimplyGen. SimplyGen, at its discretion, may from time to time furnish Distributor with marketing materials (the "Marketing Materials"). Distributor may not add to, remove from or change or alter any Marketing Materials without the specific approval in writing (including by electronic mail) by SimplyGen, prior to taking any such action. To the extent that any such changes were approved and performed, Distributor represents, warrants and undertakes that SimplyGen alone shall have full title and all rights in and to any amended or changed Marketing Materials. Distributor will offer and distribute the SimplyGen Products with the same level of prominence and identification as any other component and/or content distributed by Distributor.

1.3.                                    Without derogating from the generality of the aforesaid, Distributor represents, warrants and undertakes that no action or activity of Distributor shall be performed in any manner which may be deemed under any applicable law as unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable, which by way of example only, contains (i) sexually explicit, pornographic, or obscene content (whether in text or graphic), (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise) (iii) graphic violence (iv) politically sensitive or controversial issues or (v) any unlawful behavior or conduct. Specifically, Distributor undertakes that none of its activities shall include any use of spam (generally known as the sending of emails and the like communications to any person who is not personally known to the sender).

    2.              License Grant

2.1.                                    As required for purposes of Section 1, subject to the terms and conditions of this Agreement, SimplyGen hereby grants to Distributor for the term of this Agreement, a non-exclusive, non-sub-licensable, right and license to: (i) use the SimplyGen Products in object code form for the purpose of displaying, using, distributing and offering them to third parties; and (ii) allow end users to use and display the SimplyGen Products on their browsers (the "License").

2.2.                                    In addition to the License, SimplyGen hereby grants to Distributor a non-exclusive, royalty-free right and license to use SimplyGen's Marks for the purpose of display, promotion and distribution of the SimplyGen Products. "Marks" mean trademarks, trade names, service marks, logos and designs or other identifying signs or images of a party hereto.

2.3.                                    SimplyGen retains all right, title and interest, including without limitation, all Intellectual Property Rights in and to the SimplyGen Products and any derivatives thereof, and Distributor shall not acquire any rights or interests in the SimplyGen Products, except as specifically provided in this Agreement. "Intellectual Property Rights" mean trade secrets, patents, copyrights, Marks and similar rights of any type under the laws of any jurisdiction or governmental body, including, without limitation, all applications and registrations relating to patents, copyrights, trademarks and service marks, whether presently existing or created in the future, and any moral rights and similar rights recognized under any law or regulation of any government or jurisdiction or at common law.

2.4.                                    Distributor shall not: (i) decompile, reverse engineer, disassemble, modify, otherwise attempt to derive the source code of the SimplyGen Products or prepare any derivative works of the SimplyGen Products; (ii) modify or adapt the SimplyGen Products or any documentation furnished by SimplyGen (the "Documentation"), or merge either of them into any other products, components or other materials; (iii) represent that it possesses any proprietary interest in the SimplyGen Products; (iv) directly or indirectly, take any action to contest SimplyGen's Intellectual Property Rights or infringe upon them in any way; (v) without SimplyGen's prior written consent, distribute or offer the SimplyGen Products in any manner that is not permitted hereunder; and (vi) remove any copyright notices, logo, brand name, mark, logo or other legends from the SimplyGen Products or any accompanying Documentation.

 

    3.              Support

3.1.                                    SimplyGen shall make commercially reasonable efforts to ensure that the SimplyGen Products provided to Distributor will be without interruptions or errors, and will notify Distributor promptly if it becomes aware of the occurrence of any problems or interference with the provision of the SimplyGen Products according to this Agreement.

3.2.                                    During the term of this Agreement, SimplyGen will provide Distributor with maintenance services as follows: (i) designation of a contact person who will be available on an as-needed basis at reasonable hours to provide support for the SimplyGen Products; and (ii) response to notifications of any reproducible error ("Error") detected in the SimplyGen Products; SimplyGen shall make commercially reasonable efforts to either correct such Error or provide a patch or work-around for such an Error within a reasonable period of time. The foregoing obligations are contingent upon proper use of the SimplyGen Products in accordance with the terms of this Agreement, and also shall not apply to damage caused by abuse, misuse, alteration, neglect, or unauthorized repair or installation, or by the use or attempted use of any SimplyGen Product other than that supplied and supported by SimplyGen, or in the event that the SimplyGen Product is altered, modified or adjusted in any manner by any third party other than SimplyGen.

 

    4.              Payment and Reports

4.1.                                    All the fees and/or payments pertaining to this Agreement and due hereunder by one party (the "Payer") to the other party (the "Recipient") shall be specified and detailed in Exhibit A attached hereto (the "Payment Provisions").

4.2.                                    Payment shall be due to the other party by electronic funds transfer or by any other means deemed appropriate in the parties' mutual consent. All payments shall be made in U.S. Dollars by wire transfer to an account designated by Recipient. Recipient shall provide Payer with an applicable invoice within fifteen (15) days of the end of the month for which any payment is due hereunder.

4.3.                                    SimplyGen shall pay Distributor a share of Net Revenues (as defined below) actually and finally received by SimplyGen from third parties in connection with any transactions occurring via a SimplyGen Products distributed by Distributor, minus any amounts paid to Distributor on account and/or in connection with any transactions which were cancelled, cancelled in part or otherwise changed in such way that the related Net Revenues decreased (the "Commission").For purposes hereof, the term "Net Revenues" means all amounts of money generated by the Company less all direct costs of the Company in connection with such transaction, as well as any and all refunds, charge-backs and the like payments which may be due, and after deducting any amounts paid as Value Added Tax.

4.4.                                    The consideration specified above is inclusive of any and all value added tax, sale tax, or any other direct or indirect tax (including withholding tax), charge, duty, levy or assessment which may be levied or charged by any national, state, local or other governmental authority, agency or instrumentality. Further, SimplyGen shall withhold the required withholding tax from any payments due to Distributor and remit the same to the applicable authorities. Payments due shall be made by check or online payments processes such as PayPal, as determined from time to time by SimplyGen. SimplyGen may deduct any and all process and handling fees which may apply with respect to any manner of funds transfer or payment elected by it. To the extent that any Commission shall have been paid in connection with an amount of money later subject to refunds, deductions, etc. (e.g., due to charge backs, etc.), such refunds, deductions, etc. shall be applied to the consideration paid, and to the extent that any amounts of money shall be due back, Distributor shall be obligated to refund such amounts of money within a reasonable period of time from receipt of demand from SimplyGen; SimplyGen may also deduct such amount of money from any other payments which may be due by SimplyGen to Distributor.

4.5.                                    Each party shall solely and separately bear and be responsible for paying all applicable taxes, duties and other governmental charges imposed on it with respect to this Agreement and its performance hereunder. Each party reserves the right to withhold and deduct from any payment due to the other party hereunder any and all applicable taxes, if and to the extent required according to any applicable law or regulation.

4.6.                                    Recipient, at its own expense, will be entitled to retain a reputable, independent certified public accounting firm ("Auditor") solely for the purpose of auditing, at a mutually agreed upon time during normal business hours, those records of Payer that are reasonably necessary to determine Payer's compliance with its payment obligations hereunder. Such audit shall be conducted in accordance with generally accepted auditing standards. In the event that Payer is not in compliance with its payment obligation hereof, the Payer shall promptly pay the amounts due to Recipient and as yet unpaid in accordance with such audit, and, in addition, if the amount of any non-compliance is five percent (5%) or greater for the period reviewed, then Payer shall also promptly reimburse Recipient for the reasonable out of pocket costs of such audit. Recipient shall be entitled to one (1) audit per calendar year during the term hereof, and, upon request of Recipient, an additional, final audit may be conducted at any time up to one (1) year following the termination of this Agreement.

4.7.                                    During the term of this Agreement, Payer shall provide Recipient with reports that shall include the total revenue earned by Payer which entitles Recipient to payment, which revenue was actually received during the applicable period of the report.

 

    5.              Confidentiality; No Compete

5.1.                                    The parties hereby acknowledge and agree that from time to time before, during and after the term of this Agreement, either party may have access to or become acquainted with various trade secrets and other confidential and proprietary information of the other party, including, without limitation, any and all technical, non-technical and proprietary information such as: programs, products, customer lists, billing information, personnel, business and contractual relationships and material, business plans and strategies and all reports and summaries which contain or otherwise reflect or are generated from any of the foregoing (collectively, the "Confidential Information"). Each party shall use its best efforts to protect the other party's Confidential Information from improper disclosure and will not, during or after the term of this Agreement and thereafter, directly or indirectly, use or disclose any such Confidential Information to any person, firm or corporation for any reason or purpose whatsoever, nor shall either party, for itself or in any representative or other capacity, utilize any such Confidential Information in any manner for its own account or the account of others, except in connection with its performance under this Agreement. The parties' obligations with respect to Confidential Information shall continue in force following the date of termination of this Agreement, for whatever reason, until such time when the relevant information no longer constitutes Confidential Information.

5.2.                                    The parties further agree that any press release or announcement regarding the content of this Agreement or in connection with this Agreement shall require the mutual written consent of the parties prior to such press release or announcement.

5.3.                                    Distributor represents, warrants and undertakes that during the term of this Agreement and for a period of one (1) year from the date of termination of this Agreement neither Distributor nor any person or entity affiliated with it shall offer any product or service which is identical or similar to the SimplyGen Products.

 

    6.              Representations and Warranties

6.1.                                    Mutual. Each party continuously represents and warrants that: (i) it shall comply with all applicable laws, regulations, rules and regulatory regulations; (ii) it is validly existing and in good standing under the laws of the jurisdiction of its formation; (iii) the execution, delivery and performance by it of this Agreement have been duly authorized and approved by it and 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; and (iv) it shall not enter into any contract, agreement, or other commitment, make any warranty or guaranty, or incur any obligation or liability in the name or otherwise on behalf of the other party.

6.2.                                    By SimplyGen. SimplyGen continuously represents and warrants that: (i) it has all the necessary rights, licenses, and/or permissions that are required in order to grant to Distributor the licenses hereunder; and (ii) it possesses all right, title and/or interest in and to the SimplyGen Products as required for purposes of performance under this Agreement.

6.3.                                    By Distributor. Distributor continuously represents and warrants that: (i) it has all the necessary rights, licenses, and/or permissions that are required in order to fulfill its tasks hereunder; and (ii) it possesses all right, title and/or interest in and to the Distributor Products (or has all rights required in order to fulfill its undertakings with respect to inclusion of the SimplyGen Products in or with such Distributor Products) and any platforms, sites or operations which may be used by it for purposes of distribution and marketing of the SimplyGen Products, which do not infringe or violate any copyright, patent, trademark or other similar Intellectual Property Right of any third party.

 

    7.              Disclaimer of Warranties

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PARTIES PROVIDE THEIR RESPECTIVE SERVICES AND PRODUCTS, AS THE CASE MAY BE, ON AN "AS-IS" BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR REPRESENTATIONS WITH RESPECT TO EACH PARTY'S PERFORMANCE, SERVICES OR PRODUCTS, AS THE CASE MAY BE, PROVIDED UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTIBILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF OR IN THE COURSE OF PERFORMANCE HEREUNDER, DEALING OR TRADE USAGE). NEITHER PARTY MAKES REPRESENTATION THAT ITS SERVICES OR PRODUCTS WILL BE CONTINUOUS OR ERROR-FREE, AND NEITHER PARTY WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

 

    8.              Limitation of Liability

UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY CLAIM WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT RECEIVED BY RECIPIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ARISES. THE LIMITATIONS CONTAINED IN THIS SECTION 8 DO NOT APPLY TO EITHER PARTY'S LIABILITY FOR BREACH OF SECTION 5 HEREOF.

 

    9.              Term and Termination

9.1.                                    This Agreement shall commence on the Effective Date and shall continue until terminated by either party in accordance with the terms of Section 9.2 hereinbelow.

9.2.                                    This Agreement may be terminated: (a) for any reason and without liability, by either party upon providing the other party with 1 (one) month prior written notice; (b) by either party immediately, by providing the other party with a written notice, in any of the following events: (i) the other party has breached or breaches any of its obligations, representations or warranties herein contained and does not cure such failure within ten (10) days of a written notice describing such failure; (ii) the other party files a petition for relief under any bankruptcy laws; (iii) involuntary proceedings under any bankruptcy laws are commenced by creditors against the other party; (iv) the other party voluntarily dissolves or attempts to dissolve itself as a corporation.

9.3.                                    Upon any termination of this Agreement: (i) all licenses granted herein shall be deemed immediately terminated and Distributor shall immediately cease using and distributing the SimplyGen Products; (ii) Distributor shall erase or otherwise destroy all copies of the SimplyGen Products in its possession, which is fixed or resident in the memory or hard disks of its computers; (iii) each party shall return to the other party any Confidential Information of the other party then in its possession and shall certify in writing to the other party that all copies and partial copies of such Confidential Information have been either returned to the other party or otherwise erased or destroyed and deleted from any computer, libraries or storage devices; and (iv) each payer shall remit all payments due to the other party according to this Agreement until the date of termination of this Agreement.

 

10.              General Provisions

10.1.                                This Agreement, including all Exhibits hereto which are incorporated by this reference, states the entire agreement between the parties with respect to the subject matter hereof and shall terminate and supersede all previous discussions, proposals, negotiations, commitments, agreements and other communications, both oral and written, between the parties. The section captions herein are for convenience of reference only and do not constitute part of this Agreement. This Agreement may not be modified or amended except by a writing signed by a duly authorized representative of each of the parties. In the event any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect. Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.

10.2.                                This Agreement shall be construed, governed and interpreted in accordance with the laws of the State of Israel, without giving effect to its conflict-of-laws provisions. Each party agrees to submit to the personal and exclusive jurisdiction of the courts located in Tel Aviv, Israel. The parties specifically exclude from application to the Agreement the United Nations Conventions on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Each party shall comply with applicable law, including without limitation, all export control laws.

10.3.                                Neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, war, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

10.4.                                Neither this Agreement nor any interest herein may be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, except that SimplyGen may assign any of its rights and obligations under this Agreement, without consent of the other party, in connection with any merger, consolidation, change of control or sale of all or substantially all of its assets. Any unauthorized assignment or transfer shall be null and void. All of the terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the parties.

10.5.                                This Agreement does not make either party the employee, agent or legal representative of the other for any purpose whatsoever. It is agreed that the relationship between the parties is that of independent contractors, and nothing contained in this Agreement shall be construed or implied to create a relationship of partnership, joint venture, agency, employment, franchise or any relationship other than that of independent contractors.

10.6.                                In addition to the rights and obligations which survive as expressly provided for elsewhere in this Agreement, the Sections which by their nature would be reasonably expected to survive, shall survive and continue after any termination of this Agreement, and specifically Sections 5,7, 8, and 10 shall survive and be enforceable after such termination.

10.7.                                All notices required or permitted under this Agreement shall be in English and in writing and shall be delivered (a) to SimplyGen - by facsimile, e-mail or other electronic means, by registered or certified mail (postage prepaid) or by overnight courier service to 400 Northridge Road, Suite 250, Atlanta, GA 30350  or at such other address as SimplyGen 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 Distributor - to the e-mail address provided by Distributor in connection with its Account. For purposes of the foregoing, SimplyGen shall be permitted to rely upon the e-mail address provided by Distributor as provided above and shall not be responsible for delays in the delivery of e-mails which delays are not associated with SimplyGen's mail server.