Terms & Conditions

MobileAd Xchange Publisher Enrollment Terms and Conditions

These Apptera, Inc. MobileAd Xchange Publisher Enrollment Terms and Conditions (“Terms and Conditions”), along with any additional terms included in the Publisher Enrollment Form (“Enrollment Form”) to which this Exhibit A is attached, set forth the terms and conditions which govern the provision to Publisher of the Apptera Services described in the Enrollment Form.

1 DEFINITIONS

1.1 Capitalized terms used in this Agreement are defined terms; the definitions are set forth in this Section 1, or where such terms are first underlined in either these Terms and Conditions or the Enrollment Form.

1.2 “Ad” means an Audio Ad and/or a Visual Ad, as applicable.

1.3 “Ad Inventory” means Audio Ad Inventory and/or Visual Ad Inventory, as applicable.

1.4 “Audio Ad” means an audio recording that promotes an Advertiser’s product(s) and/or service(s), and which is provisioned to the MobileAd Xchange for the purpose of being played during a call on the Apptera Publisher Network.

1.5 “Audio Ad Play” means a single instance of playing an Audio Ad on the Publisher Service, along with any other associated call services, such as transferring calls.

1.6 “Audio Ad Fee” means the fee paid to Apptera by an Agency or Advertiser for serving an Audio Ad Play.

1.7 “Audio Ad Inventory” means the number of opportunities available to play Audio Ads on the Publisher Service.

1.8 “Visual Ad” means an ad in the form of an SMS or other text message, coupon, MMS message, banner or other visual medium which promotes an Advertiser’s product(s) and/or service(s), and which is provisioned to the MobileAd Xchange, for the purpose of being displayed before, during or after a Voice Communication on the Publisher Service.

1.9 “Visual Ad Impression” means a single instance of delivering a Visual Ad along with any other associated call services, such as transferring calls.

1.10 “Visual Ad Fee” means the fee paid to Apptera by advertiser for serving a Visual Ad Impression.

1.11 “Visual Ad Inventory” means the number of opportunities available to deliver a Visual Ad.

1.12 “Adjusted Gross Ad Revenue” means the total gross ad revenue actually received by Apptera from Agencies and Advertisers for Ad Plays on the Publisher Service, less 15% for : (i) any promotional, marketing and incentives, including, but not limited to, free Ad Plays; (ii) any revenue share payments to third parties for Ad Inventory sales services; (iii) Ad serving and operational support costs of gross ad revenue from the sale of Ad Inventory); and (iv) any applicable sales, use VAT or similar taxes (other than income taxes) imposed by any governmental authority.

1.13 “Advertiser” means (a) a person or entity offering products and/or services, which is party to an agreement with Apptera or (b) a third party intermediary which is party to an agreement with Apptera and under which it purchases Ad Inventory for the purpose of placing Audio and/or Visual Ads on the Apptera Publisher Network.

1.14 “Agency” means a person or entity which is a party to an agreement with Apptera under which it purchases Audio or Visual Ad Inventory on behalf of an Advertiser for the purpose of placing Audio and/or Visual Ads on the Publisher Service via the Apptera MobileAd Xchange.

1.15 “Agreement” means the Enrollment Form, together with these Terms and Conditions.

1.16 “Apptera Publisher Network” means the network of publishers with which Apptera has relationships for the purpose of marketing and selling Ad Inventory to Agencies and/or Advertisers.

1.17 “Business Rules” means the specific parameters (including, but not limited to, category, location, budget, time of day, day of week and throttle) that define the conditions under which an Agency or Advertiser has indicated they want to have their Audio or Visual Ads played on the Publisher Service.

1.18 “Confidential Information” means any information disclosed by one party to the other, which, if in written, graphic, machine-readable or other tangible form is marked as “Confidential” or “Proprietary”, if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the receiving party within thirty (30) days of such disclosure, or which because of its nature should have reasonably been understood by the receiving party to be confidential even in the absence of actual notification of such status. Confidential Information shall include, without limitation, information regarding either party’s business plans, finances, pricing, products or services, investors, research and development and Agency information. Confidential Information may also include information disclosed to a disclosing party by third parties.

1.19 “IO” means an Insertion Order which is submitted by an Advertiser or Publisher on behalf of an Advertiser to Apptera.

1.20 “Implementation Date” shall mean the date upon which Ads are first played on the Publisher Service via the MobileAd Xchange.

1.21 “MobileAd Xchange” means the ad marketplace used for the purpose of provisioning and managing Ads.

1.22 “Revenue Share” means the amount paid by Apptera to Publisher each month, expressed as a percentage of the Adjusted Gross Ad Revenue for a given month, as set forth on the Enrollment Form.

1.23 “Publisher” means the publisher named on the Enrollment Form.

1.24 “Publisher Service” means the business activity of Publisher which yields Ad Inventory.

1.25 “Voice Communication” means any call or other voice communication or voice stream to or with the Publisher Service which creates Audio Ad Inventory.

2 Iintegration of mobilead xchange and publisher service

2.1 The parties agree to commence the integration of the MobileAd Xchange and the Publisher Service as per the Enrollment Form and within thirty (30) days of the Effective Date, and to cooperate and use their commercially reasonable efforts to complete the integration by the Implementation Target Date set forth on the Publisher Enrollment Form.

3 publisher ad inventory and standards

3.1 Minimum Monthly Ad Inventory. During the Term of this Agreement, Publisher agrees to make available to Apptera the Minimum Monthly Ad Inventory set forth on the Enrollment Form for the purpose of selling, directly and indirectly, such Ad Inventory to Agencies and/or Advertisers. Publisher agrees to notify Apptera within one (1) business day following an inquiry from Apptera if the Minimum Monthly Ad Inventory is not available for any reason.

4 INFORMATION TO BE PROVIDED TO APPTERA.

4.1 Within ten (10) days of the Effective Date, Publisher shall provide to Apptera the following information about the Ad Inventory to be made available for sale by Apptera: (i) an initial three (3) month good faith forecast of the amount of Ad Inventory Publisher will make available for sale by Apptera; and (ii) applicable targeting options. Publisher will also work with Apptera to determine and provide Apptera with information about the Publisher Service’s audience, including demographics and/or other meta data regarding the caller, call context or behavior regarding the use of the Publisher Service. Publisher also agrees to make appropriate personnel and information available in a timely fashion to respond to Advertiser inquiries made to Apptera regarding the Advertising Inventory being sold by Apptera. Publisher agrees to designate at least one (1) employee as the primary contact for providing information and answering such questions.

4.2 Forecasts. Within ten (10) days of the end of each calendar month, Publisher agrees to provide to Apptera a good faith forecast of Publisher’s available Ad Inventory for the following three calendar months (“Forecast”).

5. RIGHT TO USE.

5.1 Subject to the terms and conditions, and during the term, of this Agreement, Apptera hereby grants to Publisher the right to use the MobileAd Xchange to serve Ads to the Publisher Service.

5.2 Use Restrictions. Publisher shall not: (i) access and/or use the MobileAd Xchange in order to design, create or build a service or product that is competitive with the MobileAd Xchange, or which uses ideas, features or functions that are similar to the MobileAd Xchange; (ii) modify or make derivative works based upon the MobileAd Xchange or any part thereof; or (iii) solicit Ads that (a) contain any obscene or sexually explicit content, (b) contain any false, inaccurate, misleading, defamatory, or libelous content or (c) violate any laws or third party rights.

6. IMPLEMENTATION; business rules; AUDIT RIGHTS

6.1 Implementation. Publisher and Apptera agree to work in good faith to execute the implementation plan defined in the Enrollment Form.

6.2 Business Rules. Publisher agrees to play Ads provisioned to Publisher by Apptera in compliance with the applicable Business Rule. In the event that Publisher plays Ads in violation of the applicable Business Rules, then such Ad Plays shall not be subject to Revenue Share on Gross Adjusted Ad revenue. After notice to Publisher that an Ad has been played in violation of the applicable Business Rule, Publisher shall use its commercially reasonable efforts to correct such violation within two (2) business days.

6.3 Audit Rights. Each party (the “Auditing Party”) shall be entitled to have the applicable records of the other party (the “Audited Party”) audited by an authorized officer of the Auditing Party or a reputable accounting firm to verify the inventory amounts and/or Revenue Share allocated to the Auditing Party hereunder. Such audit(s) shall be conducted no more than once per year, on at least thirty (30) days prior written notice, and shall be at the Auditing Party’s expense, except that if the audit reveals a discrepancy in the Auditing Party’s favor in excess of ten percent (10%) of the amount owed for the period audited, then the Audited Party shall pay the reasonable cost of the audit.

7. revenue share; Reporting; taxes

7.1 Revenue Share; Reports and Payment. For each calendar month (or portion thereof) that Ads are being delivered on the Publisher Service, Apptera agrees to pay to Publisher the Revenue Share set forth in the Enrollment Form. Payment terms to Publishers are forty-five (45) days following Apptera’s receipt of payment from Advertisers and/or Agencies. No payment to Publishers shall be made where Apptera has not received payment from Advertisers and/or Agencies.

7.2 Reporting. On a monthly basis during the Term, or otherwise as agreed between the Parties, Apptera will provide to Publisher a report (“Inventory Report”) setting forth, inter alia, a list of the advertising campaigns that ran on the Publisher Service and the number of impressions of Advertising Inventory used during the preceding month.

7.3 Payment. On a month basis during the Term, Apptera will provide to Publisher a report (“Payment Report”) setting forth the amount of Adjusted Gross Ad Revenue received by Apptera in the calendar month just ended, and the Revenue Share owed by Apptera to Publisher thereon. Accompanying each Payment Report shall be a payment from Apptera to Publisher of the applicable Revenue Share.

7.4 Taxes. All amounts payable by Publisher to Apptera under this Agreement are exclusive of any sales or use tax, levy or similar governmental charge that may be assessed by any jurisdiction in connection with the activities under this Agreement. All such taxes shall be the responsibility of Publisher; provided, however, that Publisher shall have no liability for any net income, net worth or franchise taxes assessed on Apptera by the United States or any state thereof. If, as a result of any tax or levy, Publisher is required to withhold any amount on any payment to Apptera, then the amount of the payment to Apptera shall be automatically increased to totally offset such tax, so that the amount actually remitted to Apptera, net of all taxes and withholding, equals the amount invoiced or otherwise due.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Ownership of Ads. As between Apptera and Publisher, Apptera and its Agencies and/or Advertisers own all right, title and interest in and to the Ads, including all intellectual property rights therein and thereto. Publisher acquires no right or interest in or to the Ads, except the limited rights granted in Section 5.1 above.

8.2 License Grant to Play Ads. Apptera hereby grants to Publisher a limited, non-exclusive, royalty-free, worldwide right and license to publicly perform and publicly display on the Publisher Service Ads provided to Publisher by Apptera via the MobileAd Xchange, in accordance with the applicable IO.

8.3 Ownership of the MobileAd Xchange. Apptera owns all right, title and interest in and to the MobileAd Xchange or any Apptera service, including all intellectual property rights therein and thereto. Publisher acquires no right or interest in or to the MobileAd Xchange, except for the limited rights granted in Section 5.1 above.

9. Trademarks.

9.1 Apptera Trademarks. During the term of this Agreement, Publisher shall have the right to indicate to the public that it is an authorized member of the Apptera Publisher Network, and to advertise such fact under the then-current trademarks, marks, and trade names of Apptera (“Apptera Trademarks”). In addition, Publisher shall fully comply with all reasonable guidelines, if any, communicated by Apptera concerning the use of Apptera Trademarks. Except as set forth in this Section 9.1, nothing contained in this Agreement shall grant or shall be deemed to grant to Publisher any right, title or interest in or to Apptera Trademarks. All uses of Apptera Trademarks will inure solely to the benefit of Apptera. At no time during or after the term of this Agreement shall Publisher challenge or assist others to challenge Apptera Trademarks or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of Apptera. Upon termination of this Agreement, Publisher shall immediately cease to use all Apptera Trademarks.

9.2 Publisher Trademarks. During the term of this Agreement, Apptera shall have the right to indicate to the public that it is an authorized seller of Publisher’s Ad Inventory, and that Publisher is a member of the Apptera Publisher Network, and to advertise such fact under the trademarks, marks, and trade names of Publisher (“Publisher Trademarks”). In addition, Apptera shall fully comply with all reasonable guidelines, if any, communicated by Publisher concerning the use of Publisher Trademarks. Except as set forth in this Section 9.2, nothing contained in this Agreement shall grant or shall be deemed to grant to Apptera any right, title or interest in or to Publisher Trademarks. All uses of Publisher Trademarks will inure solely to the benefit of Publisher. At no time during or after the term of this Agreement shall Apptera challenge or assist others to challenge Publisher Trademarks or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of Publisher. Upon termination of this Agreement, Apptera shall immediately cease to use all Publisher Trademarks.

10. REPRESENTAIONS, WARRANTIES AND DISCLAIMER.

10.1 Apptera Warranties. Apptera warrants to Publisher only that:

(a) Apptera will require each Agency and/or Advertiser to (i) represent and warrant to Apptera that to its knowledge, (1) it either owns or has all required licenses consents, waivers and permissions to provide to Apptera the Ads and/or ad copy from which Apptera will create Ads, and to permit Apptera to have the Ads played on the Apptera Publisher Network; and (2) it will not provide to Apptera any Ads or ad copy that violates any applicable law, the copyright, trademark, trade secret, rights in image, likeness, name or personality or other intellectual property rights of any third party (“Intellectual Property Rights”); and (ii) indemnify, defend and hold Publisher harmless from and against any third party claim that is based upon, related to or arises out of (1) a breach of the representation and warranties set forth in Section 10.1(a)(i) above or (2) the content or subject matter of any Ad submitted for play on the Apptera Publisher Network by the Advertiser or Agency, including, without limitation, any claim that an Ad or any product or service featured therein infringes in any manner any Intellectual Property Right, violates any applicable law, is unlawful, obscene, defamatory, libelous, slanderous, or has resulted in consumer fraud, product liability or any tort, injury, damage or harm to any person or entity; and

(b) Apptera (i) is in compliance with laws, rules and regulations, and any industry codes or rules by which Apptera may be bound, applicable to its obligations hereunder; (ii) it has the full right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (iii) the Ads do not include religious programming, 900 numbers, X-rated material, prescription drugs, habit-forming drugs, drug related paraphernalia, tobacco products, distilled liquor, any pornographic products or services or other material which would generally be considered obscene or indecent, or any other activity that it knows or reasonably should know contravenes any applicable laws or regulations and (iv) its execution of this Agreement, and its performance of all obligations and duties hereunder, do not and will not violate any agreement to which Apptera is a party or by which it is otherwise bound.

10.2 Publisher Warranty. Publisher represents and warrants that: (i) it is in compliance with all agreements to which it is a party relating to Voice Communications, any laws, rules and regulations, and any industry codes or rules by which it may be bound, applicable to its obligations hereunder; (ii) the Voice Communications and related content do not include religious programming, 900 numbers, X-rated material, prescription drugs, habit-forming drugs, drug related paraphernalia, tobacco products, distilled liquor, any pornographic products or services or other material which would generally be considered obscene or indecent, or any other activity that it knows or reasonably should know contravenes any applicable laws or regulations; (iii) it has the full right, power and authority to enter into this Agreement and to perform the acts required of it hereunder and (iv) its execution of this Agreement, and its performance of all obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound.

10.3 Apptera Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 10.1 ABOVE STATES APPTERA’S SOLE WARRANTY CONCERNING THE MOBILEAD XCHANGE, ITS USE BY PUBLISHER OR ANY AD PROVIDED TO PUBLISHER OR PLAYED ON THE PUBLISHER SERVICE UNDER THIS AGREEMENT. APPTERA DOES NOT WARRANT THAT THE OPERATION OF THE MOBILEAD XCHANGE WILL BE ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1 ABOVE, THE MOBILEAD XCHANGE AND THE ADS ARE PROVIDED STRICTLY “AS IS,” AND APPTERA MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, WHETHER ARISING FROM COURSE OF DEALING, USAGE OF TRADE OR STATUTE, AS TO THE MOBILEAD XCHANGE, THE ADS OR ANY MATTER WHATSOEVER. IN PARTICULAR, TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE MOBILEAD XCHANGE AND THE ADS ARE EXPRESSLY DISCLAIMED.

10.4 Publisher Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 10.2 ABOVE STATES PUBLISHER’S SOLE WARRANTY CONCERNING THE PUBLISHER SERVICE, TELESCOPE TARGET, ITS USE BY APPTERA OR ANY AD PROVIDED TO PUBLISHER OR PLAYED ON THE PUBLISHER SERVICE UNDER THIS AGREEMENT. PUBLISHER DOES NOT WARRANT THAT THE OPERATION OF THE PUBLISHER SERVICE OR TELESCOPE TARGET WILL BE ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2 ABOVE, THE PUBLISHER SERVICE AND TELESCOPE TARGET ARE PROVIDED STRICTLY “AS IS,” AND PUBLISHER MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, WHETHER ARISING FROM COURSE OF DEALING, USAGE OF TRADE OR STATUTE, AS TO ANY MATTER WHATSOEVER. IN PARTICULAR, TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED.

11. LIMITATION OF LIABILITY.

11.1 EXCEPT FOR A BREACH BY EITHER PARTY OF THEIR OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 12 BELOW, UNDER NO CIRCUMSTANCES SHALL PUBLISHER, APPTERA OR ITS LICENSORS BE LIABLE TO ANY PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BROUGHT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

11.2 UNDER NO CIRCUMSTANCES SHALL PUBLISHER, APPTERA OR ITS LICENSORS BE LIABLE TO PUBLISHER FOR ANY COST OF COVER OR OF OBTAINING SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR EQUIPMENT ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BROUGHT, EVEN IF APPTERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.

11.3 IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY IN CONNECTION WITH THIS AGREEMENT WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE LESSER OF (i) THE ACTUAL AMOUNT PAID BY APPTERA TO PUBLISHER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY OR ONE HUNDRED THOUSAND DOLLARS ($100,000). NOTWITHSTANDING THE FOREGOING, IN THE CASE OF THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY’S LIABILITY SHALL EXCEED TWO HUNDRED THOUSAND DOLLARS ($200,000) THE FOREGOING LIMITATION OF LIABILITY IS INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT, AND SHALL HAVE NO APPLICATION TO A BREACH BY EITHER PARTY OF THEIR OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 12 BELOW.

12. INDEMNIFICATION

12.1 Apptera Indemnity.

(a) Apptera will defend, at its own expense, Publisher, its parent and subsidiaries, and their respective officers, directors, employees and contractors (collectively “Publisher Indemnified Parties”), against any third party claim or legal action brought against Publisher to the extent that it is based on a claim that the MobileAd Xchange used within the scope of this Agreement infringes a United States patent or copyright of a third party, and Apptera will pay any final judgment against Publisher Indemnified Parties in any such action if attributable to any such claim or incurred by Publisher Indemnified Parties through settlement of such claim.

(b) Apptera will defend, indemnify and hold Publisher Indemnified Parties harmless from and against any and all liability, including, without limitation, outside attorneys fees, arising out of a breach of Apptera’s representation and warranties made hereunder.

(c) Apptera’s obligations in Sections 12.1(a) and (b) above are subject to the conditions that the applicable Publisher Indemnified Party must: (i) promptly notify Apptera in writing of such claim, (ii) permit Apptera to have sole control of the defense, compromise or settlement of such claim, including any appeals, and (iii) cooperates with Apptera, at Apptera’s expense, in the defense or settlement of such claim.

12.2 Remedies. In addition to Apptera’s indemnification obligations in Section 12.1(a), should the MobileAd Xchange become, or in Apptera’s opinion be likely to become, the subject of any infringement claim, Publisher shall permit Apptera, at Apptera’s option and expense, to (i) procure for Publisher the right to continue using the MobileAd Xchange, or (ii) replace or modify the MobileAd Xchange so that it becomes noninfringing, or (iii) terminate Publisher’s right to use the MobileAd Xchange.

12.3 Disclaimer. THIS SECTION 12 STATES THE ENTIRE LIABILITY OF APPTERA, AND PUBLISHER’S EXCLUSIVE REMEDY, WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE MOBILEAD XCHANGE OR ANY AD, AND APPTERA SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVED INFRINGEMENT.

12.4 Publisher Indemnity. Except with respect to Apptera’s indemnity obligation as described in Section 12.1 above, Publisher agrees to indemnify, defend and hold harmless Apptera from any costs, damages, and reasonable attorneys’ fees resulting from any claims by third parties in connection with (i) the Publisher Service, the use of MobileAd Xchange by Publisher and/or the playing of any Ad on Telescope Target and (ii) a breach of Publisher’s representation and warranties made hereunder, provided that Apptera (i) gives Publisher prompt written notice of each such claim; (ii) tenders to Publisher sole control of the defense or settlement of each such claim at Publisher’s expense; and, (iii) cooperates with Publisher, at Publisher’s expense, in defending or settling each such claim.

13. CONFIDENTIAL INFORMATION.

13.1 Exclusions. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party or anyone to whom it provided such Confidential Information; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party.

13.2 Restrictions on Use and Disclosure of Confidential Information. The parties agree to hold each other’s Confidential Information in confidence and not use such information except in furtherance of this Agreement during the term of the Agreement and for a period of three (3) years after the termination of this Agreement. The parties agree that except as expressly provided in this Agreement, unless required by law, they will not make each other’s Confidential Information available in any form to any third party other than their professional consultants who have a need to know such information and who are bound by a duty of nondisclosure, or use each other’s Confidential Information for any purpose other than the furtherance of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or professional consultants in violation of the terms of this Agreement. Each party shall be fully responsible for its compliance and for compliance by all of its employees and professional consultants with this Section 13. Notwithstanding the foregoing provisions of this Section 13.2, each party shall be free to use any information which consists of generalized ideas, concepts, know-how or techniques that are incidentally retained in the unaided memories of persons who have had authorized access to the Confidential Information of the other party; provided that this provision shall not be deemed to grant either party a license under the other party’s patents, copyrights or trademarks.

13.3 Return of Confidential Information. Upon written request at any time and upon termination of this Agreement for any reason, each party shall return to the other party, or at the other party’s request destroy, all Confidential Information of the other party.

14. TERM AND TERMINATION

14.1 Term. This Agreement shall commence upon the Effective Date and remain in effect for a period of two (2) years from the Implementation Date, unless earlier terminated in accordance with Section 14.2 below. Thereafter, this Agreement shall automatically renew for additional one (1) year terms unless either party provides the other party written notice of its intent not to renew at least sixty (60) days prior to the expiration of the then-current term. Notwithstanding the foregoing, either party may terminate this agreement with thirty (30) days written notice to the other party.

14.2 Termination. Either party may terminate this Agreement upon written notice to the other party in the event the other party fails to cure any material breach of this Agreement within thirty (30) days of receiving written notice of such breach. Notwithstanding the foregoing, either party may terminate this agreement with thirty (30) days written notice to the other party.

14.3 Effect of Termination. Should this Agreement be terminated for any reason other than Publisher’s breach, Apptera shall complete performance of any IOs accepted by Publisher from Apptera prior to the effective date of such termination.

14.4 Survival of Terms. All terms of this Agreement that contemplate performance or forbearance by either party after any expiration or termination of this Agreement shall survive expiration or termination of this Agreement.

15. GENERAL

15.1 Assignment. Neither this Agreement nor any rights or obligations of Publisher hereunder may be assigned by Publisher in whole or in part without the prior written approval of Apptera; provided, however, that Publisher may assign this Agreement to any entity to which Publisher transfers all or substantially all of its business or assets to which this Agreement relates.

15.2 Attorneys’ Fees. In the event any proceeding or lawsuit is brought by Apptera or Publisher in connection with this Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.

15.3 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of such party.

15.4 Governing Law. This Agreement and all matters arising under or related to its formation or performance whether sounding in contract, tort, or otherwise shall be governed in all respects by the laws of the United States of America and the State of California without regard to conflicts of law principles.

15.5 Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.

15.6 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.

15.7 Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery or five (5) days after deposit in the mail. Notices shall be sent to the parties’ addresses set forth at the beginning of this Agreement.

15.8 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

15.9 Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

15.10 Waiver of Rule of Construction. Each of the parties and their counsel have carefully reviewed this Agreement, and, accordingly, the normal rule of construction to the effect that any ambiguities in this Agreement are to be construed against the drafting party shall not apply in the interpretation of this Agreement.

15.11 Entire Agreement. This Agreement together with any Schedules and Exhibits hereto completely and exclusively states the entire agreement of the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of Apptera and Publisher by their duly authorized representatives.

15.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed original, but all of which together shall constitute one and the same document.