Terms and Conditions
These Terms and Condition (the “Terms and Conditions”) have been updated on julu 7, 2020. By continuing to access and use the InstallHyper Platform following such date, Advertiser indicates that it has read and agrees to the updated Terms and Conditions.
1.1 “Advertiser’s Materials” means all Content provided or used by Advertiser in connection with an Offer, including, without limitation, Advertiser’s Software and Deliverables, Advertiser Marks and other marketing materials.
1.2 “Advertiser’s Software” means the Advertiser’s software and/or applications and any components thereof, as set forth in the Insertion Order that will be available via the InstallHyper Platform.
1.3 “Content” means data, information (including Confidential Information), graphics, links, web pages, signs, images, software and code (source and binary code), technology, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.
1.4 “Confidential Information” means any non-public, proprietary, confidential and/or trade secret information of a party hereof, whether furnished before or after the Effective Date (as set forth in the Insertion Order), and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive.
1.6 “Downloadable Application Guidelines” means InstallHyper’s guidelines, available here*, that apply to the distribution of the Advertiser’s Materials via the InstallHyper Platform, as may be updated by InstallHyper from time to time, and which are incorporated herein by reference.
1.7 “End User” means an individual user who installs Advertiser’s Software via the InstallHyper Platform.
1.8 “InstallHyper Platform” means InstallHyper’s proprietary installation and delivery platform, currently known as InstallHyper TM and any services and/or features provided by InstallHyper in connection thereto including without limitation, any documentation, user and/or technical manuals that may be provided to Advertiser in relation thereto but specifically excluding the Advertiser’s Materials and any third party Content that may be available therein.
1.10 “Installation(s)” means the installation of an Advertiser’s Software by an end user in connection with or arising from an Offer, as identified and tracked by the InstallHyper Platform.
1.11 “Installation Process” means the installation process of Content and/or products and/or applications, including without limitations, Advertiser’s Software, as made available via the InstallHyper Platform.
1.12 “Marks” means trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered.
1.13 “Monetization Partners Policy” means InstallHyper’s policy, available here*, that sets forth the requirements for monetization practices that apply to the Advertiser’s Materials distributed via the InstallHyper Platform, as may be updated by InstallHyper from time to time, and which is incorporated herein by reference.
* To review the Policy, please use the password: Welcome@IC.
1.14 “Offer(s)” means a promotion and display of Advertiser’s Software to a user during the Installation Process.
1.15 “Proprietary Rights” means all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered Marks and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and confidential business and technical information (including, without limitation, research and development, programming, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications); (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
InstallHyper retains the exclusive right to modify or update these Terms and Conditions, at any time and without prior notice. If InstallHyper updates these Terms and Conditions, it will post the updated Terms and Conditions here and if the update is material, InstallHyper will also provide the Advertiser with a written notification (which may be via email to Advertiser’s designated email in IroSource’s systems), and will update the last updated date at the top of these Terms and Conditions. However, it is Advertiser’s responsibility to review these Terms and Conditions from time to time to check for updates. Advertiser agrees that by continuing to use the InstallHyper Platform after InstallHyper has posted an update to these Terms and Conditions or provided Advertiser with notice thereof, Advertiser will be bound by the updated Terms and Conditions. If the updated Terms and Conditions are not acceptable to Advertiser, as applicable, Advertiser’s only recourse is to cease using the InstallHyper Platform and/or terminate the Agreement.
3. Scope; License.
3.1 Subject to the terms and conditions of the Agreement, during the term hereof, InstallHyper shall use reasonable efforts to deliver Offers to users through the InstallHyper Platform (the “Software Distribution”).
3.2 Advertiser acknowledges and agrees that: (a) Offers may be promoted together with products and/or Content of other InstallHyper partners’ (the “Partners”) during the Installation Process, as shall be determined by InstallHyper at its sole discretion; (b) InstallHyper may display other independent software vendors’ (“ISV”) products and/or Content (the “ISV’s Offers”) during the Installation Process together with the Advertiser’s Software; and (c) the placement, order and number of times Offer(s) will appear during the Installation Process, in a specific territory or otherwise (as applicable), will be determined by InstallHyper at its sole discretion.
3.3 Advertiser shall (at its own expense) be solely responsible for providing to InstallHyper all Advertiser’s Materials including, without limitation, the Advertiser’s Software and the creative for the Offers (including text, pictures and graphics) all in a mutually agreed upon format. On an ongoing basis throughout the term hereof, Advertiser shall provide InstallHyper with updates, upgrades or other modifications of the Advertiser’s Software and other Advertiser’s Materials by no later than three (3) business days as of the date in which Advertiser makes them generally available to the public or to any other of its substantial business partners. At InstallHyper’s request, Advertiser will provide technical support to InstallHyper to facilitate InstallHyper’s display and distribution of the Advertiser’s Materials (as applicable) via the InstallHyper Platform, at Advertiser sole expense. Advertiser acknowledges and agrees that all Offers must be pre-approved by InstallHyper, at its sole discretion, in order to be displayed via the InstallHyper Platform.
3.4 Advertiser hereby grants to InstallHyper (and each Partner) a royalty-free, worldwide right and license to use, reproduce, reasonably modify, distribute, and display the Advertiser’s Materials (and with respect to Advertiser’s Marks, subject to Advertiser’s usage policies as shall be provided to InstallHyper); all for the purpose of marketing and promoting the Offers.
4. InstallHyper Platform Limitations.
4.1 Advertiser represents and warrants that: (i) Offer(s) will clearly and accurately describe the Advertiser’s Software including without limitation, functionality and features and any End User information that may be accessed, collected and/or used, and will not be misleading in any manner, and (ii) InstallHyper will not be responsible for any discrepancy or misleading actions with respect to the description of the Advertiser’s Software.
4.2 Advertiser represents and warrants that each of Advertiser’s Software and/or any other Advertiser’s Materials used by it in connection with or in relation to the InstallHyper Platform will comply in full with: (a) the standard industry guidelines for downloadable applications and/or Content; and (b) the Downloadable Application Guidelines and the Monetization Partners Policy. InstallHyper reserves the right, at its sole discretion, to supplement the foregoing guidelines or requirements from time to time.
4.3 InstallHyper shall have the right, at its sole discretion, to remove any Offer from the InstallHyper Platform at any time, with or without notice, if: (a) InstallHyper receives a complaint from any person or entity regarding the Offer; (b) InstallHyper reasonably believes that displaying the Offer will have an adverse impact on the InstallHyper Platform, the Partners and/or its reputation or business; (c) the Offer is in violation of any of the terms and conditions of the Agreement; (d) the Offer is in breach of any applicable law, rule or regulation, or industry best practices; or (e) the Offer breaches any third party’s right. Advertiser acknowledges and agrees that InstallHyper will not be liable for any damages or costs resulting from or connected to the removal of any such Offer in any manner to Advertiser and/or to any other person or entity.
4.4 In addition to the foregoing, Advertiser acknowledges and agrees that at any time during the Term (as defined below), if in InstallHyper’s reasonable judgment Fraudulent Activity (as defined in the Downloadable Application Guidelines) or any other activity which has an adverse impact on End Users is taking place via the InstallHyper Platform, then InstallHyper may, at its sole discretion (and without notice to Advertiser): (i) remove such Fraudulent Activity or other activity from the InstallHyper Platform, and (ii) take any measures needed to prevent or correct such Fraudulent Activity or other activity.
4.5 Advertiser acknowledges that the InstallHyper Platform includes reporting routines that automatically identify and analyze certain aspects of performance matrixes of the Offers (including non-personally identifying, aggregate End User and behavioral data) and provide reports to InstallHyper. Advertiser agrees that InstallHyper will be free to use such data for its business purposes, at its sole discretion. In addition, Advertiser acknowledges and agrees that InstallHyper and/or may access, collect and/or use End-Users’ information.
4.6 InstallHyper retains the exclusive right at its sole discretion (and without prior notice), to: (a) determine the setting, features, functionality and look and feel of the InstallHyper Platform or any part thereof; and (b) upgrade and/or update the InstallHyper Platform or any part thereof, including, without limitation, by adding, removing and/or changing any Content, materials or functionality available therein.
4.7 If Advertiser requests, by written notice, that InstallHyper will pause the Campaign (as defined in the Insertion Order) and/or modify any Offer, then InstallHyper shall do so within two (2) business days from receipt of such notice (the “Allotted Timeline”). In the event that InstallHyper fails to act in accordance with Advertiser’s request within the Allotted Timeline, then Advertiser shall have the right to terminate the Agreement immediately by written notice. Advertiser acknowledges and agrees that InstallHyper shall have no liability to Advertiser and/or any other person or entity as a result of such termination.
4.8 Advertiser represents and warrants that it will not contact any Partner directly, whether with respect to the Agreement or otherwise without InstallHyper’s express written approval.
4.10 InstallHyper and/or its affiliates, at their own expense, will be entitled to audit and examine those records of Advertiser that are reasonably necessary to determine Advertiser’s compliance with the Downloadable Application Guidelines and/or any other standard or requirements set forth herein, once during each four (4) month period during the Term and once during the ninety (90) days’ period following the termination of the Agreement. The audit will be conducted at a mutually agreed upon time during Advertiser’s normal business hours, upon no less than ten (10) days written notice. If according to the audit Advertiser is not (or has not been) in compliance hereunder, Advertiser shall promptly reimburse InstallHyper for the reasonable costs of such audit together with any amounts that Advertiser has earned that resulted from any of Advertiser’s activities which are in breach of the Downloadable Application Guidelines and/or any other standard or requirements set forth herein.
5.1 In consideration for the Software Distribution hereunder, each calendar month during the Term and thereafter for as long as Advertiser derives any revenues from the Offers, Advertiser shall pay InstallHyper an amount (the “Consideration”) that will be equal to the product of (y) the number of Installations from the countries listed in Table A of the Insertion Order, as identified by the InstallHyper Platform, in any such applicable calendar month; and (z) the PPI set for each such country in Table A of the Insertion Order. Subject to Section 5.2 below, InstallHyper’s records shall be deemed as a final and non-appealable proof for the purpose of calculating the Consideration due and payable to it pursuant to the terms of the Agreement.
5.2 Each calendar month during the Term, InstallHyper will provide the Advertiser with a report (via email) which will include Installation statistics and a calculation of the Consideration, in a form determined by InstallHyper (the “Report”). The Report will be based on InstallHyper’s reporting system. As part of the InstallHyper Platform, the Advertiser may be provided with access to the InstallHyper Business Intelligence system where the Advertiser will be able to view reports and analysis regarding the Installations (the “BI System”). Advertiser acknowledges and agrees that the BI System is provided to Advertiser for convenience purposes only and InstallHyper is not liable for any unavailability or inaccuracy, temporary or otherwise, of the BI System, and that in any event of contradiction between the amounts set forth in the BI System and the Report, the Report shall prevail.
5.3 If Advertiser disputes the Consideration detailed in any Report, it will provide InstallHyper with a written notice (via e-mail to InstallHyper’s email address set forth in the Insertion Order) specifying the reasons for such dispute with as much detail as possible, by no later than seven (7) days as of receipt of a Report (the “Dispute Notice”). Following InstallHyper’s receipt of a Dispute Notice, the parties will cooperate, in good faith, in order to resolve the applicable dispute. Advertiser agree that: (a) if no Dispute Notice is received by InstallHyper with respect to a Report, then such Report will be considered as final and non-appealable proof for the purpose of computing the Consideration due and payable to InstallHyper and set forth in such Report; and (b) receipt of a Dispute Notice and/or cooperation to resolve any dispute, will not affect and/or delay the payment of any Consideration due to InstallHyper hereunder.
5.4 Advertiser is solely responsible for paying all applicable taxes, duties or charges imposed or that may be imposed by any applicable governmental agency in connection with the Agreement.
6. Monetization & Liquidated Damages.
6.1 Advertiser represents and warrants that: (a) the list and details of the Advertiser’s Software set forth in the Insertion Order are accurate and each Advertiser’s Software does not included any elements that are not described therein, including without limitation, the description of all monetization actions and/or practices initiated by Advertiser (and/or by any third party) in connection with each Advertiser’s Software (the “Monetization Processes”); (b) neither Advertiser nor any third party on its behalf will modify or change any Monetization Processes (each a “Monetization Modification”) without InstallHyper’s prior written approval and the End Users’ prior informed consent (together, the “Monetization Modification Approval”); and (c) a Monetization Modification will only: (i) be in effect after the applicable Monetization Modification Approval, and (ii) apply for the period as of the applicable Monetization Modification Approval and thereafter. For clarity, retroactive Monetization Modification will not apply to any individual who was an End User immediately prior to the date in which such Monetization Modification occurred.
6.2 Advertiser acknowledges that InstallHyper may sustain irreparable harm by a breach of Section 6.1 above therefore, Advertiser agrees that, in case of a breach of Section 6.1, InstallHyper will be entitled, without prejudice to all other remedies available to it, to receive from Advertiser an amount equal to the aggregate amount Advertiser has paid InstallHyper during the twelve (12) months period which preceded such breach. Advertiser further agrees that the foregoing constitutes as liquidated damages for Advertiser’s failure to comply with the terms of Section 6.1 above and does not constitute a penalty or forfeiture, and that the amount set forth above is a reasonable estimate of InstallHyper’s damages in the event of such breach.
7. Representations and Warranties.
7.1 Each of the parties hereby represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; (c) it is duly organized and in good standing under the laws of its state of organization; and (d) the execution of the Agreement or the performance by it of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject.
7.2 InstallHyper hereby represents and warrants that during the Term, the Installhyper Platform will be wholly owned or validly and legally licensed by it or is in the public domain (as applicable) and it does not knowingly infringe or violate any Proprietary Rights of any person or entity InstallHyper does not guarantee that any Advertiser’s Materials will be made available through the InstallHyper Platform. InstallHyper does not have any obligation to monitor the Advertiser’s Materials, and as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the Advertiser’s Materials or anything described or written by Advertiser. InstallHyper does not make any representation or warranty with respect to “open source” or “free software” that may be included in the InstallHyper Platform, and InstallHyper hereby disclaims any and all liability to Advertiser or any other person or entity with respect thereof. The InstallHyper Platform including any ISV Offers and/or other technology or services that may be available therein are provided by InstallHyper “AS-IS”. Except as expressly provided in the Agreement and to the fullest extent allowable by law, InstallHyper makes no other warranty of any kind, whether express, implied, statutory or otherwise, including, without limitation, warranties of merchantability, and fitness for a particular use or non-infringement or those arising in the course of or connected to its performance hereunder, and disclaims any such warranties. In addition, InstallHyper does not represent or warrant that: (i) the InstallHyper Platform and/or any technology or services available therein will be error-free or that any errors will be corrected; (ii) the operation of the InstallHyper Platform and/or any technology or services available therein will be uninterrupted; (iii) Advertiser will profit or derive any economic benefit from Advertiser’s use of the InstallHyper Platform; or (iv) any specific Content, service and/or feature will be made available to Advertiser via the InstallHyper Platform. Some states or jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply.
7.3 Advertiser hereby represents and warrants that: (i) any and all activities and/or obligations it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules and regulations, including, without limitation, United States Federal laws and privacy laws, rules and regulations; (ii) the Advertiser’s Materials are in compliance with all applicable laws, rules and regulations, and industry best practices (including, without limitation, with the Children’s Online Privacy Protection Act of 1998 and CAN-SPAM Act of 2003; (iii) it owns or has the valid legal right or license (as applicable) to use and distribute the Advertiser’s Materials, to the extent required or contemplated hereunder, and the Advertiser’s Materials (including, without limitation, the Advertiser’s Software) do not and will not, at any time during the Term, infringe or violate any Proprietary Right or any other right of any person or entity; (iv) any Advertiser’s Software that is based on any “open source” or “free software” is in full compliance with the applicable “open source” or “free software” license under which it is provided, including without limitation, the distribution of the Advertiser’s Software in accordance with the terms and conditions of the Agreement; (v) the Advertiser’s Software shall not uninstall or disable any ISV Offers or any other third party software and/or applications; (vi) it is solely responsible for the Advertiser’s Materials (including, without limitation, the Advertiser’s Software) and any Content or technology that may be reached via the Advertiser’s Materials; (vii) it will only use the InstallHyper Platform for the purposes and in the manner expressly permitted under the Agreement; (viii) the distribution of the Advertiser’s Software via the InstallHyper Platform will not cause the InstallHyper Platform or any ISV Offers to become subject to any Excluded License (for purposes hereof, the term “Excluded License” means any license that requires as a condition of use, modification and/or distribution of the software provided under such license (the “Licensed Software”), that the Licensed Software or other software combined and/or distributed with the Licensed Software will be: (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge); and (ix) it shall not bind InstallHyper to any agreement or obligation or give any representation, warranty or guarantee in respect of InstallHyper, except for those that are specifically authorized by InstallHyper in advance and in writing.
8. Proprietary Rights.
8.1 Except as expressly granted in the Agreement, InstallHyper retains all right, title and interest in and to the InstallHyper Platform and the InstallHyper Marks (except for the Advertiser’s Materials) and any derivatives thereof, including any Proprietary Rights therein and the ISV’s retain all right, title and interest in the ISV Offers including any Proprietary Rights therein (together, the “InstallHyper Property”). All use of the InstallHyper Property (including, without limitation, the ISV Offers ) will inure to the benefit of InstallHyper and Advertiser will not: (i) contest, or assist others to contest InstallHyper’s rights or interests in and to the InstallHyper Property (including, without limitation, the ISV Offers) or the validity of InstallHyper’s rights in and to the InstallHyper Property (including, without limitation, the ISV Offers) and all applications, registrations or other legally recognized interests therein, or (ii) seek to register, record, obtain or attempt to pursue any Proprietary Rights or protections in or to the InstallHyper Property (including, without limitation, the ISV Offers). All rights in and to the InstallHyper Property which are not expressly granted herein are reserved by InstallHyper.
8.2 Except as expressly granted in the Agreement, Advertiser retains all right, title and interest in and to the Advertiser’s Materials and any derivatives thereof, including any Proprietary Rights therein. All use of the Advertiser’s Materials shall inure to the benefit of Advertiser and InstallHyper will not: (i) contest, or assist others to contest, Advertiser’s rights or interests in and to the Advertiser’s Materials or the validity of Advertiser’s rights in and to the Advertiser’s Materials and all applications, registrations or other legally recognized interests therein, or (ii) seek to register, record, obtain or attempt to pursue any Proprietary Rights or protections in or to the Advertiser’s Materials. All rights in the Advertiser’s Materials which are not expressly granted herein are reserved by Advertiser.
8.3 Neither party shall assert any Proprietary Rights in or to the other party’s Content, materials or any element, derivation, adaptation, variation or name thereof. Neither party shall have the right to remove, obscure or alter any notices of Proprietary Rights or disclaimers appearing in or on any Content or materials provided by the other party.
9. Confidential Information.
9.1 During the Term, each party may have access to the Confidential Information of the other party, therefore, the recipient of Confidential Information agrees: (i) not to disclose the disclosing party’s Confidential Information to any person or entity other than to its shareholders, directors, officers, affiliates, employees, advisors or consultants (collectively, the “Representatives”) and then only on a “need to know” basis and provided that these Representatives are bound by written agreement to comply with the confidentiality obligations contained herein; (ii) not to use any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and obligations under the Agreement; and (iii) to keep the disclosing party’s Confidential Information confidential using the same degree of care it uses to protect its own Confidential Information, which shall not be in any event less than a reasonable degree of care.
9.2 At any time upon the written request of disclosing party, recipient shall return to disclosing party, or destroy, in accordance with disclosing party’s written instructions, all of disclosing party’s Confidential Information in its possession, including without limitation, all writing or recordings whatsoever prepared by recipient and based on disclosing party’s Confidential Information and recipient shall provide disclosing party with a written certificate, evidencing the destruction of disclosing party’s Confidential Information.
9.3 Notwithstanding the foregoing, in the event that recipient is required by legal process, order of any court of competent jurisdiction, or any applicable law, rule or regulation to disclose any of disclosing party’s Confidential Information, then prior to any such disclosure, recipient will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief, and further provided, that if such protective order or other remedy is not obtained, recipient shall disclose only that portion of the disclosing party’s Confidential Information that it is legally required to disclose by advise of its counsel, and shall use all actions required to obtain confidential treatment for such Confidential Information. Further to the above, Advertiser acknowledges and agrees that if InstallHyper is required by legal process, or applicable law to disclose information related to the Advertiser in connection with its use of the InstallHyper Property (as defined above), InstallHyper may disclose such information, without notice to Advertiser.
9.4 It is agreed that if recipient fails to abide by its obligations under this Section 9, disclosing party will be entitled to immediate injunctive relief, in addition to any other rights and remedies available to it at law or in equity.
9.5 The obligation to protect the Confidential Information shall survive and continue, following the termination of the Agreement for a period of three (3) years, unless a longer period of protection is available under applicable law.
10. Limitation of Liability.
IN NO EVENT WILL INSTALLHYPER, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO ADVERTISER OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION TO DAMAGES FOR ANY LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, LOSS OF CUSTOMERS, LOSS OF ANY EQUIPMENT OR SOFTWARE, SYSTEMS, COMPUTER DAMAGE OR SYSTEM FAILURE , LOSS OF DATA OR INFORMATION, SERVICE INTERRUPTION, INTEREST CHARGES OR COST OF CAPITAL, COST OF PROCUREMENT OF SUBSTITUTE EQUIPMENT, SOFTWARE, SYSTEMS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ADVERTISER’S ABILITY OR INABILITY TO USE THE INSTALLHYPER PLATFORM UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT INSTALLHYPER SHOULD HAVE REASONABLY FORESEEN OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT WILL INSTALLHYPER’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED ONE THOUSAND U.S. DOLLARS (US$1,000). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
Advertiser will defend, hold harmless, and indemnify InstallHyper and/or its subsidiaries, affiliates, directors, officers, employees, agents, its licensors, successors and permitted assigns (collectively, the “InstallHyper Group”) from and against any and all claims, suits, actions, demands, proceedings, costs, expenses, losses, damages and/or liabilities of any kind (including but not limited to reasonable attorney’s fees) threatened, asserted or filed, brought, commenced or prosecuted (collectively, “Demands”) by any third party against the InstallHyper Group arising out of or relating to: (a) any acts or omissions on the part of Advertiser; (b) a breach or alleged breach of any warranty, representation or obligation made by Advertiser under the Agreement; (c) a breach or alleged breach of any third party rights, including without limitation, End Users’ privacy rights; or (d) the End Users’ use of the Advertiser’s Software. The InstallHyper Group will: (i) promptly notify the Advertiser of any Demand; (ii) provide the Advertiser, at the cost of the Advertiser, reasonable information and assistance in defending the Demand; and (iii) give the Advertiser control over the defense and settlement of the Demand; provided, however, that any settlement will be subject to the InstallHyper Group’s prior written approval (which approval shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, the InstallHyper Group will not be required to allow Advertiser to assume the control of the defense of a Demand (in which case InstallHyper Group will assume the control at Advertiser’s costs), to the extent that the InstallHyper Group determines that: (1) such Demand relates directly to the InstallHyper Platform; (2) the relief sought against the InstallHyper Group is not monetary damages; or (3) settlement of, or an adverse judgment with respect to, such Demand could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of InstallHyper. The InstallHyper Group may join in the defense of any Demand at its own expense.
12. Term and Termination.
12.1 The Agreement shall commence on the Effective Date and shall continue in force and effect thereafter for additional periods of twelve (12) months unless terminated by either party, in accordance with Section 12.2 below (the “Term”).
12.2 The Agreement may be terminated in accordance with any of the following provisions:
12.2.1 Either party may terminate this Agreement, for any reason and without liability, upon providing the other party with seven (7) days’ prior written notice;
12.2.2 InstallHyper may immediately terminate the Agreement, by providing Advertiser with a written notice, if: (a) Advertiser engages in any action that, in InstallHyper’s sole discretion, reflects poorly on InstallHyper or otherwise disparages or devalues InstallHyper’s reputation or goodwill; (b) InstallHyper determines, at its reasonable judgment, that it is commercially impractical for it to continue providing the InstallHyper Platform to Advertiser as a result of legal and/or technical considerations; or (c) Advertiser becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency, administration or receivership proceeding, or has a trustee, administrator or receiver appointed for a material portion of its business or assets or has any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed is not dismissed within thirty (30) days of such filing. If Advertiser becomes subject to any of the events described in Section 12.2.2(c) above, then it shall promptly notify InstallHyper about the occurrence of such an event, in writing; and
12.2.3 Either party may immediately terminate the Agreement: (a) if the other party breached any of its obligations, representations and/or warranties set forth in the Agreement and failed to cure such breach within two (2) days from receipt of a written notice thereof; or (b) if the other party engages in any of the acts prohibited by the Agreement and failed to cure such breach within two (2) days from receipt of a written notice thereof.
12.3 Upon the termination of the Agreement, for any reason: (a) InstallHyper will immediately cease the Software Distribution; (b) all rights and licenses granted herein shall terminate immediately; (c) Advertiser’s right to use the InstallHyper Platform or any part thereof shall cease immediately; (d) Advertiser will promptly remit all payments due to InstallHyper which are yet unpaid at such time; and (e) Advertiser shall promptly return to InstallHyper, or destroy and/or delete and certify the destruction of any and all InstallHyper Property at its possession at such time, including without limitation InstallHyper’s Confidential Information.
12.4 Following the termination of the Agreement, any provisions of the Agreement that in order to fulfill their purpose need to survive the termination of the Agreement (including Sections 1, 5, 6, 8-11, 13 and this Section 12.4), shall survive.
12.5 Advertiser acknowledges and agrees that: (a) InstallHyper will not be liable to Advertiser or any other person or entity for damages resulting from the termination of the Agreement or termination of Advertiser’s access to the InstallHyper Platform, and (b) following the termination of the Agreement, InstallHyper will have no obligation to maintain any information stored in its data centers related to Advertiser or any other person or entity related to Advertiser and the Advertiser’s Materials or to provide any information to Advertiser or any other person or entity on its behalf.
13.1 The Agreement embodies the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior agreements, understandings, commitments or arrangements, oral or written, with respect to the subject matter hereto. The captions and headings in the Agreement are for convenience purpose only and shall not affect the construction or interpretation of the Agreement.
13.2 Neither party shall be entitled to assign or transfer the Agreement or any of its rights or delegate any of his obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, InstallHyper may assign any of its rights and obligations under this Agreement, without receiving Advertiser’s consent: (a) if such assignment is made to any of its affiliates or subsidiaries, provided that InstallHyper will notify Advertiser on such assignment; or (b) in connection with any merger, consolidation, change of control or sale of all or a material portion of its assets. Any unauthorized assignment or transfer shall be null and void.
13.3 The Agreement shall be binding upon and inure to the benefit of each of the parties and their respective successors and assignees. The Agreement is not made for the benefit of any third party who is not a party hereto, and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under, or by reason of, the Agreement.
13.4 Neither party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder due to any condition beyond its reasonable control, including without limitation to, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war and governmental action.
13.5 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.
13.6 If any provision of the Agreement is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise unenforceable, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions will not be affected and will continue in full force and effect.
13.7 The failure to require performance of any provision of the Agreement shall not affect a party’s right to require performance at any time thereafter; nor shall a waiver of a breach of any provision constitute a waiver of the provision itself or a waiver on another occasion.
13.8 This Agreement will be governed by, construed and enforced in accordance with the laws of United kingdom, without regard to its conflicts of law principles or provisions. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Any disputes arising out of or in connection with this Agreement shall be exclusively settled by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”) by one arbitrator appointed in accordance with the ICC Rules (the “Arbitrator”). The arbitration shall take place in United Kingdom and shall be conducted in the English Language. The arbitration proceedings shall be conducted on an expedited basis and shall result in an award within no more than 60 days. The arbitration shall be conducted on a confidential basis. The award of the Arbitrator shall be final and binding on the parties. Nothing contained herein shall prevent InstallHyper from applying to any court of law to obtain any temporary or final relief with respect to claims concerning nonpayment of invoices. The arbitration award shall be enforceable in any court of competent jurisdiction. Any motion to enforce or vacate an arbitration award under this agreement shall be kept confidential to the maximum extent possible.
13.9 Any notice or other communications required or permitted to be given hereunder or in connection herewith shall be in the English language and in writing, and may be given by facsimile, by e-mail (with receipt confirmation), by personal delivery or by sending the same through the post via prepaid registered envelope addressed to the other party at its address set forth in the Insertion Order or any other address provided by such party, in writing, to the other party for the purposes of this Section and any notice so given shall be deemed to have been served: (a) upon receipt when delivered personally; (b) upon confirmation of receipt when sent via facsimile or e-mail; (c) within one (1) business days of being sent via overnight courier; or (d) within three (3) business days of being sent via registered or certified mail (postage prepaid).