inSearch Terms & Conditions
See below a model of the Large & High Volume web sites contract model which these types of customers would have to sign (in a separate original document) before we can start providing the service.
1) Definitions
a) “Authorized Distributors” means any third parties who market and supply the SERVICE (whether as a stand-alone service, embedded or supplied in conjunction with the AUTHORIZED DISTRIBUTORS’ own services) to prospective VISITORS, VISITORS world-wide and, for the avoidance of any doubt, shall include INDEXET LLC and its subsidiaries, Indexet Brasil Ltda.
b) “Indexet” means INDEXET (as identified above) and any subsidiary, subsidiary undertaking or holding company of INDEXET and all other subsidiaries or subsidiary undertakings of such holding company from time to time.
c) “Integrator” means any company appointed by INDEXET to coordinate the integration and implementation of INDEXET’s systems into the CUSTOMER’s own systems or domains as well as to coordinate and maintain the Standards & Procedures that need to be put in place to allow for the correct interaction between INDEXET and the CUSTOMER. These Standards & Procedures might include things such as data transfer parameters, electronic payment systems requirements and other routines. The INTEGRATOR shall also be closely involved in many other Project Management activities throughout the lifetime of this Agreement. The INTEGRATOR shall be bound by the same rules imposed to INDEXET and to the CUSTOMER by this Agreement in what relates to confidentiality and disclosure of information. Besides, any acts carried out by the INTEGRATOR shall be deemed as equivalent to acts from INDEXET and, thus, INDEXET assumes full responsibility for the works implemented and coordinated by the INTEGRATOR. For the avoidance of doubt the definition of INTEGRATOR shall include Indexet Brasil Ltda., its subsidiaries and affiliate companies.
d) “Customer Data” means the information supplied by the CUSTOMER under this Agreement, in any form and media, including without limitation any literary work (text, tables and computations), artistic work (including graphic works such as drawings, diagrams, maps, charts, plans and photographs) and multimedia content (photographs, audio and video files) as described in SCHEDULE A.
e) “Publication(s)” means the titles of any information services distributed by the CUSTOMER in print or electronic editions.
f) “Visitor” means an individual or organization having access to the SERVICE through the Internet.
g) “Restrictions” means those restrictions placed on the VISITOR’s use of the CUSTOMER DATA in the SERVICE, including, without limitation, restrictions governing the use, copying, redistribution, storage, republication and sale of the Information, as more particularly described in SCHEDULE B.
h) “Service” means INDEXET’s Software Platform consisted of the following modules:
i) Database system
ii) Search Engine
iii) Indexing Engine
iv) Web Graphic Interface
v) Administration Tools
vi) Collaboration Tools
vii) Support Tools
viii) Advertising Tools
ix) Search Engine Optimization Tools
x) Customized Web Server
offered from time to time, including, without limitation, customized and custom branded hosted Software SERVICE, graphic user interfaces, automatic artificial intelligence text indexing systems, data base systems, interactive information search and retrieval services, services providing selective dissemination of information based on predefined search criteria and other search-related information delivery, and any necessary hardware, software and broadband infrastructure needed to make this SERVICE Platform available for the CUSTOMER. It is important to state that the SERVICE is a constant work in progress which means that INDEXET will be constantly changing and improving the system to better serve its customers. Although INDEXET will do its best effort to incorporate product suggestions and requests from its customers INDEXET does not guarantee that these suggestions or requests will actually find their way to any final release of the SERVICE. The SERVICE’s feature sets and their implementation time frames are subject solely to INDEXET’s own criteria.
i) “Minimum Reserved Ad Revenue” means all the ad sales derived revenue, up to the threshold defined in SCHEDULE C, which shall be solely kept by INDEXET before it starts sharing Ad sales revenue with the CUSTOMER. That means INDEXET shall retain monthly, as maintenance fee, the potential sum to be collected through the sale of ads served by either Advertising Networks, Advertising Agencies or by INDEXET itself on the SERVICE up to a minimum threshold amount previously established between the two parties and explicit in the SCHEDULE C of this Contract.
j) “Support Services” means any support services provided by INDEXET to the CUSTOMER or to the VISITORS. These services include both free support, full support to the CUSTOMER and e-mail technical support (which does not include support regarding the CUSTOMER’s content issues), and optional paid additional support services such as telephone support to VISITORS.
k) “Hardware” means any servers or networking equipment used to host the SERVICE.
2) Customer Grant of Rights
a) The CUSTOMER hereby grants to INDEXET a non-exclusive, worldwide right for the Term to use, including, but not limited to, store, reproduce, copy, translate (through instant translation systems), distribute, display and incorporate, the CUSTOMER DATA or any portion of it in any manner, form, media or medium, as exists now or in the future:
i) In the SERVICE,
ii) For technical development, support, training, marketing and advertising, in connection with the SERVICE;
iii) To make the CUSTOMER DATA available, itself or through AUTHORIZED DISTRIBUTORS, to VISITORS through the SERVICE; provided that all VISITORS receiving the SERVICE from INDEXET or AUTHORIZED DISTRIBUTORS are subject to the RESTRICTIONS.
b) Where INDEXET or AUTHORIZED DISTRIBUTORS proposes to supply the SERVICE subject to terms that are materially different from the RESTRICTIONS, INDEXET shall give the CUSTOMER at least 30 days prior notice. If the CUSTOMER objects to such revised terms within the notice period, INDEXET or such AUTHORIZED DISTRIBUTORS shall not make the CUSTOMER DATA available on those terms.
c) Subject to the right of INDEXET to use portions of or make translations of the CUSTOMER DATA in accordance with clause 2)a), INDEXET shall not edit or alter the content of any item of the CUSTOMER DATA or any articles contained therein in any way that change its original meaning. However, given the inaccuracy of current automatic text translation technologies, which shall be offered to the VISITORS as an optional feature, both parties acknowledge herein the conditions in which such instant translation feature will be offered to avoid any doubts or uncertainties:
i) Instant translations shall be offered as an additional and optional feature to the VISITOR with the sole purpose of facilitating the comprehension of texts in other languages without offering, nevertheless, any guarantee whatsoever of translation accuracy in such a way that INDEXET, the CUSTOMER, and any given provider of such instant translation software, are not liable for the inaccuracies of such translation results or for any errors contained in them.
ii) INDEXET agrees to inform VISITORS about its exemption of liability, as well as the exemption of liability from the CUSTOMER and from the provider of such instant translation software, on the translation results and its quality, and that the VISITOR is completely responsible for the interpretation and/or interpretation errors that might be committed by him/her, as well as for the consequent decisions that might be made by him/her on such interpretations and/or interpretation errors, when utilizing such feature.
d) INDEXET shall, and it shall use all reasonable efforts to ensure that its VISITORS and AUTHORIZED DISTRIBUTORS shall, include the CUSTOMER’s copyright notice set out in SCHEDULE A on all items of the CUSTOMER DATA in the SERVICE whether on screen or on all printouts.
e) The CUSTOMER hereby grants to INDEXET a non-exclusive and worldwide right to enlist AUTHORIZED DISTRIBUTORS that shall help to promote, sell access and/or advertising solutions related to the SERVICE without, however, distributing CUSTOMER DATA to VISITORS in any way that is not explicitly authorized by this Agreement. INDEXET shall be solely responsible for whatever costs associated with hiring and/or maintaining the AUTHORIZED DISTRIBUTORS.
3) Indexet Grant of Rights
a) INDEXET hereby grants to the CUSTOMER a non-exclusive, non-transferable, worldwide license for the Term to use the SERVICE, solely for its own business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to the CUSTOMER are reserved by INDEXET and its licensors. This license includes, but is not limited to, the rights to:
i) Customize, and/or request INDEXET to customize, the service with the CUTOMER’s colors and logos;
ii) Create and distribute hyperlinks to and from the SERVICE system in order to link it, or "e-frame" it, to other web pages or web services owned or operated by the CUSTOMER;
iii) Commercially exploit the SERVICE and make it available to third parties;
iv) Market and advertise the SERVICE.
b) Where the CUSTOMER proposes to supply the SERVICE subject to terms that are materially different from the explicit rights described in this Agreement, the CUSTOMER shall give INDEXET at least 30 days prior notice. If the INDEXET objects to such revised terms within the notice period, the CUSTOMER shall not make the SERVICE available on those terms.
c) The CUSTOMER shall not:
i) Sublicense, sell, resell, transfer or assign any rights granted to the CUSTOMER by INDEXET to any other third party outside the scope of this Agreement;
ii) Modify or make derivative works based upon the SERVICE outside the scope of this Agreement;
iii) Reverse engineer, directly or indirectly, or “hack” the SERVICE in order to build a competitive product or service;
iv) Build a product copying or using similar ideas, features, functions or graphics of the SERVICE being offered by INDEXET.
v) Use the SERVICE to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
vi) Send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights;
vii) Send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
viii) Interfere with or disrupt the integrity or performance of the SERVICE;
ix) Attempt to gain unauthorized access to the SERVICE or its related systems or networks.
d) As already stated earlier in this document, INDEXET does not own any data, information or material that the CUSTOMER submits to the SERVICE in the course of its use of the SERVICE. The CUSTOMER, not INDEXET, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all CUSTOMER DATA. In the event this Agreement is terminated (other than by reason of CUSTOMER breach), INDEXET will make available to the CUSTOMER a file of the Customer Data within 30 days of termination if the CUSTOMER requests so at the time of termination. INDEXET reserves the right to withhold, remove and/or discard CUSTOMER DATA without notice for any breach of this Agreement. Upon termination for cause, the CUSTOMER’s right to access or use the CUSTOMER DATA through the SERVICE immediately ceases, and INDEXET shall have no obligation to maintain or forward any CUSTOMER DATA.
e) INDEXET alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the INDEXET Technology, the SERVICE and any suggestions, ideas, enhancement requests, feedback, recommendations or other information, that is not classified as CUSTOMER DATA, provided by the CUSTOMER or by any other party relating to the SERVICE. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the SERVICE, the INDEXET Technology or the Intellectual Property Rights owned by INDEXET. The INDEXET name, the INDEXET logo, and the product names associated with the SERVICE are trademarks of INDEXET or third parties, and no right or license is granted to use them.
4) Delivery of the CUSTOMER DATA
a) Delivery of the CUSTOMER DATA. During the Term the CUSTOMER shall make the CUSTOMER DATA and updates available to INDEXET in the agreed language, format and method for delivery by the CUSTOMER or for retrieval by INDEXET, and/or by its INTEGRATOR when applicable, in accordance with the specifications set out in SCHEDULE A (collectively, the “CUSTOMER Transmissions”).
b) Technical Information and Format Changes. Prior to the initial delivery of the CUSTOMER DATA or delivery in a new format the CUSTOMER shall co-operate with INDEXET, and its INTEGRATOR when applicable, and provide appropriate test files and test transmissions of the CUSTOMER DATA and other relevant documentation. INDEXET will not be liable for any SERVICE disruption that results of the fact that the CUSTOMER did not notify INDEXET of its CUSTOMER DATA format change without giving INDEXET at least 60 days written notice of such alteration.
c) Compatibility. INDEXET may, at its own expense, reformat and index the CUSTOMER DATA by including codes, tags, and similar instructions as part of the Information to make it compatible with the applicable SERVICE and any such reformatting and indexing shall be and remain the property of INDEXET. INDEXET, the INTEGRATOR and the AUTHORIZED DISTRIBUTORS may input and store the CUSTOMER DATA on their systems and software for inclusion in the SERVICE and may make a reasonable number of copies of the Information for backup and archival purposes subject to the terms stated in clause 3)d) and10)c).
d) Altered Content. The CUSTOMER DATA to be delivered under this Agreement shall, so far as the CUSTOMER has rights to do so, contain all such PUBLICATIONS that the CUSTOMER set out in SCHEDULE A. The CUSTOMER shall not add to, delete or materially alter the PUBLICATIONS list under this Agreement without the prior consent of INDEXET.
5) Copyright; Representations and Warranties
a) The CUSTOMER represents and warrants to INDEXET that the CUSTOMER or its licensors own all right title and interest in and to the CUSTOMER DATA and the copyright thereto, and that the CUSTOMER is able to grant the rights in this Agreement and that to the best of the CUSTOMER’s knowledge and understanding that:
i) The CUSTOMER DATA is accurate, complete, timely and reliable;
ii) Use of the CUSTOMER DATA does not and will not infringe any third party rights, and
iii) Dissemination of the CUSTOMER DATA as contemplated by this Agreement will not contravene any laws (including, but not limited to the law of defamation) or regulations in any country in which the CUSTOMER already purposefully distributes this Information on its own.
b) The CUSTOMER shall retain from the CUSTOMER DATA it supplies under this Agreement any Information likely to breach Section 5)a). Where such infringing Information has already been supplied to INDEXET, on receipt of written notice from the CUSTOMER (including e-mail or fax) INDEXET shall, as soon as reasonably possible, delete or amend such CUSTOMER DATA as instructed by the CUSTOMER. In addition, INDEXET may without notice and at any time suspend and/or remove, but not amend, any CUSTOMER DATA from the SERVICE which either may infringe any third party rights or applicable laws, or in relation to which INDEXET has reasonable concerns about its legality, quality, accuracy and/or reliability.
6) Promotion
a) The CUSTOMER grants INDEXET and the AUTHORIZED DISTRIBUTORS a nonexclusive, worldwide right to use the CUSTOMER’s name(s), logo and any trademarks specified in SCHEDULE A:
i) To identify the CUSTOMER as the licensee of the web hosted SERVICE as well as the source of the CUSTOMER DATA available in the SERVICE, and;
ii) In written and electronic materials used from time to time to promote and market the SERVICE to other CUSTOMERS or prospective CUSTOMERS. Subject to the foregoing, neither party shall publish or distribute any advertising or promotional material containing the names, logos or trademarks of the CUSTOMER without its prior written consent, which consent shall not be unreasonably withheld. If within 10 days after delivery of samples of such material, the receiving party has not notified the sending party of its disapproval, such consent shall be deemed to have been given.
b) INDEXET shall make available to the CUSTOMER, at no charge, an administrator password to the customized and custom branded Internet hosted SERVICE offered by INDEXET (excluding those Services offered through AUTHORIZED DISTRIBUTORS), which contain the CUSTOMER DATA, for the purpose of allowing the CUSTOMER to monitor ad sales, royalty reports and other configuration options.
7) Support Services
INDEXET will provide SUPPORT SERVICES to the CUSTOMER and its VISITORS according to the following rules:
a) Included Support. As part of this agreement INDEXET will offer the following range of free support services:
i) To the CUSTOMER. INDEXET shall provide all necessary technical support, software maintenance as well as the necessary initial training to the CUSTOMER’s staff. This range of SUPPORT SERVICES include e-mail and telephone support to the CUSTOMER’s staff from Monday to Friday and from 8AM to 6 PM excluding national holidays. INDEXET commits to do its best efforts to solve the technical issues that fall within its scope of responsibilities, including content transmission issues that happen to be within its domains, that may arises from time to time in the course of this agreement, in the shortest period of time possible within its logistical and administrative limitations. This SUPPORT SERVICES will not cost any additional amount to the CUSTOMER since they are already included as part of the MINIMUM RESERVED AD REVENUE.
ii) To the VISITORS. INDEXET shall provide e-mail technical support to the VISITORS up to the limit of 300 support queries per month. This e-mail support shall cover questions about the usage of the SERVICE as well as problems and bugs found in it. INDEXET will do its best efforts to respond such queries in the shortest possible amount of time, within its logistical and administrative limitations, but for the avoidance of any doubts the minimum amount of time that INDEXET might take to respond such queries will be one business day from the time the support request has been sent from within the “Support” tab in the SERVICE.
b) Additional Support Fees. If the amount of support queries surpasses the 300 requests per month threshold established in clause7)a)ii) above, INDEXET might charge the CUSTOMER Additional Support Fees, according to SCHEDULE D, to be able to provide such Additional Support. INDEXET will provide a monthly support report to the CUSTOMER, alongside its regular monthly royalty report, which shall include a description of these charges if applicable. In case there are any pending charges to be made regarding Additional Support, these fees will be deducted from whatever royalty monies owed by INDEXET to the CUSTOMER in the following payment cycles. These deductions are cumulative and shall be discounted from whatever royalty surpluses the CUSTOMER may have accumulated within any given month until the Additional Support Fees owed by the CUSTOMER to INDEXET are completely reached regardless of how many payment cycles are needed for this accomplishment.
8) Payment and Pricing
a) Calculation of Royalty Fee Payments. In consideration of the rights granted in this Agreement:
i) INDEXET shall pay to the CUSTOMER weekly, monthly or quarterly payments (“Payments”) in accordance to the rules set forth in SCHEDULE C. The CUSTOMER shall be eligible for Payments, and INDEXET shall calculate payments due to the CUSTOMER, from the date of first commercial availability of the CUSTOMER DATA on the SERVICE. Sums payable by INDEXET are exclusive of any applicable value added, sales, use or similar taxes which may from time to time be applicable, as well as any fees charged by the CUSTOMER’s bank in receipt of such payments, and the collection of such taxes and fees is the sole responsibility of the CUSTOMER.
ii) INDEXET shall retain the MINIMUM RESERVED AD REVENUE that shall suffice to remunerate for every technical and maintenance aspect of the SERVICE, including the hosting of the SERVICE in INDEXET’s own servers, as well as any sporadic adaptation or modification that might be necessary to the systems that make up the SERVICE, for the correct provision of such SERVICE. Only after the MINIMUM RESERVED AD REVENUE threshold amount is reached, inside each and every month, INDEXET will then start paying royalties to the CUSTOMER, which shall be calculated according the ratio specified in SCHEDULE C over any amount that surpasses the MINIMUM RESERVED AD REVENUE in that month. The MINIMUM RESERVED AD REVENUE threshold amount is not cumulative outside each month and in the likelihood of such amount not being reached in a given month, INDEXET shall keep whatever total amount of ad sales the SERVICE has generated in that month and this amount, for as low as it might be, shall suffice as its maintenance fee for that specific month. INDEXET shall not charge the CUSTOMER in subsequent months for the difference between the MINIMUMRESERVED AD REVENUE and the actual revenue in a previous month. For the avoidance of any doubt this clause shall not apply to the Additional Support Fees covered in clause7)b).
b) Reports and Payment. INDEXET shall make available to the CUSTOMER an online report showing:
i) VISITOR’s total consumption of the CUSTOMER DATA;
ii) The Payment due in respect of ad sales derived from such consumption and the basis for the Payment calculation.
INDEXET shall deliver payment either by check or wire transfer of the total amount of Payments due. Upon request, the CUSTOMER shall provide INDEXET with the information necessary to deliver payment by wire transfer, and shall notify INDEXET of any changes to such information.
9) Indemnification
a) By the CUSTOMER. In the event of any claim, suit, or action by any third party against INDEXET, the INTEGRATOR and/or the AUTHORIZED DISTRIBUTORS, (including its directors, board members, employees and agents) arising out of the CUSTOMER DATA, or INDEXET’s use, possession, distribution of the CUSTOMER DATA, within the scope of the rights granted under this Agreement, INDEXET shall promptly notify the CUSTOMER, and the CUSTOMER, at its expense, shall defend such claim, suit or action, and shall indemnify and hold harmless INDEXET, the INTEGRATOR and/or the AUTHORIZED DISTRIBUTORS, (including its directors, board members, employees and agents) against any judgment, liability, loss, cost or damage (including any settlement amount approved by the CUSTOMER, litigation costs and reasonable attorneys’ fees) related to such claim, suit or action.
b) By INDEXET. In the event of any claim, suit or action by any third party against the CUSTOMER (except for claims, suits or actions for which the CUSTOMER is required to indemnify INDEXET under Section9)a)) arising out of any act or omission by INDEXET in handling the CUSTOMER DATA or relating to any other aspect of the SERVICE that is not related to CUSTOMER DATA, the CUSTOMER shall promptly notify INDEXET, and INDEXET, at its expense, shall defend such claim, suit or action, and shall indemnify and hold harmless the CUSTOMER against any judgment, liability, loss, cost or damage (including any settlement amount approved by INDEXET, litigation costs and reasonable attorneys’ fees) related to such claim, suit or action.
10) Term and Termination
a) Term. The term of this Agreement shall commence on the last date of signature set out above and shall continue for an initial term of 12 (twelve) months (the “Term”). Thereafter this Agreement shall continue indefinitely but may be terminated by either party on giving to the other 90 (ninety) days advance written notice.
b) Termination. If either party shall default in the performance of any provision contained in this Agreement, and such default shall not have been cured within 30 days after written notice thereof shall have been given to the appropriate party, the party giving such notice of default may then give further written notice to such other party terminating this Agreement in which event this Agreement and the rights granted herein shall terminate on the date specified in such further notice.
c) Effects of Termination. Termination of this Agreement terminates all the rights granted with respect to the CUSTOMER DATA already received by INDEXET and INDEXET must delete the CUSTOMER DATA already present in the SERVICE and cease the online distribution of the hosted CUSTOMER branded SERVICE on the Internet. The termination of this Agreement also terminates all the rights granted with respect to the usage of INDEXET SERVICE by the CUSTOMER.
11) Confidentiality
Each party agrees to maintain the confidentiality and secrecy of the terms of this Agreement and other information marked confidential or proprietary (“Confidential Information”). Oral disclosure will be treated as Confidential Information if confirmed in writing within 10 days of such disclosure. The CUSTOMER acknowledges that INDEXET may be required to disclose the terms of this Agreement to the INTEGRATOR and AUTHORIZED DISTRIBUTORS solely in connection with this Agreement. This duty of confidentiality shall not apply to either party in the event that disclosure of the Confidential Information is required by governmental or regulatory entities.
12) Miscellaneous
a) Notices. All notices shall be in writing, and delivered by registered mail, return receipt requested, priority or overnight courier service, by facsimile or email with confirmation to the address set out on the signature page, or other address stipulated in writing by a party. Notice shall be deemed delivered and received on the date it is actually received or in any event within 3 days of sending.
b) Independent Contractor. Nothing in this Agreement will or shall be construed to create any partnership, joint venture or relationship of principal and agent between the parties and each party is an independent contractor.
c) Disclaimer of Warranties. INDEXET AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. INDEXET AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT:
i) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA;
ii) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS;
iii) ERRORS OR DEFECTS WILL BE CORRECTED, OR,
iv) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES, OTHER HARMFUL COMPONENTS OR FROM HACKER ATTACKS OR ATTEMPTS TO ATTACK THE SYSTEMS’ THAT ARE HOSTING THE SERVICE.
THE SERVICE IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY INDEXET AND ITS LICENSORS.
d) Damages. Except for amounts payable pursuant to Section 11), NEITHER PARTY SHALL IN NO EVENT, AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM THE CUSTOMER OR FROM INDEXET IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
e) Internet Delays. INDEXET'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. INDEXET IS NOT RESPONSIBLE FOR ANY DELAYS, SERVICE OR DATA DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
f) Compliance with Laws. Each party shall comply with all laws applicable to their respective performance under this Agreement.
g) Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement 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 of this Agreement be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself.
h) Separability. If all or part of any provision of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent, the remainder of the Agreement, or the application of such provision or part in other circumstances, shall not be affected thereby, and each provision or part shall be valid and enforced to the fullest extent permitted by law.
i) Force Majeure. Neither party shall be liable for any loss or failure to perform any obligation under this Agreement due to causes beyond its reasonable control provided that the party seeking to rely on this clause has taken reasonable precautions to stop the force majeure event arising. Should such circumstances continue for more than 90 days, either party may terminate this Agreement.
j) Governing Laws. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, United States of America, applicable to contracts made and performed wholly or partially in Florida or anywhere else in the world. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
k) Language. Despite the fact that a translation of this Agreement is provided by INDEXET at SCHEDULE E as a attachment of this contract, as means for helping the CUSTOMER to more easily understand the contents of this document, both parties acknowledge that the official language of this Agreement shall be the English language and no translation into any other language will be used in its official interpretation or in its enforcement.
l) Counterparts. This Agreement must be executed in two counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
m) Entire Agreement, Amendment and Assignment. This Agreement may not be amended except by written instrument executed by the CUSTOMER and INDEXET. Neither party may assign this Agreement without the prior written consent of the other, provided, however that each party may transfer any of its rights and obligations to any subsidiary, subsidiary undertaking or holding company of such party and to engage subcontractors in the performance and/or exercise of its rights and obligations under this Agreement. This Agreement contains the entire understanding of the parties and supersedes all previous verbal and written Agreements on the subject thereof.
SCHEDULE A
DESCRIPTION OF THE CUSTOMER DATA
1. LIST AND DESCRIPTION OF CUSTOMER DATA:
2. SPECIFICATION:
The CUSTOMER shall supply the CUSTOMER DATA to INDEXET in accordance with the following specifications:
(a) Data Transfer: the Provider FTPs Information to a site designated by INDEXET.
(b) Data Format: XML
(c) Graphics: Include graphics/images with data if possible. Acceptable formats include, but are not limited to, GIFs, JPGs, and PDFs.
Graphics/Artwork/Photographs/Images: The rights granted under this Agreement shall include all graphics, artwork, photographs and images now or hereafter appearing in the Information, unless they are expressly excluded on this SCHEDULE A.
SCHEDULE B
RESTRICTIONS
INDEXET shall warn the VISITOR about the rights and restrictions of usage of the CUSTOMER DATA:
1. The VISITOR is allowed to link to any part of the SERVICE but shall not be permitted, and shall not permit others, to reproduce, sell, publish or broadcast the CUSTOMER DATA without obtaining previous authorization from the CUSTOMER;
2. The CUSTOMER DATA may be accessed by the VISITOR for his/her individual use but shall not be resold or redistributed for profit in any way including, but not limited to, the monetization through advertising;
3. An individual article or part of the CUSTOMER DATA may, on an occasional and infrequent basis, be included by the VISITOR in internal communications as well as in reports and other communications to customers, friends and peers (or in response to their inquiries), provided that such CUSTOMER DATA is attributed to the CUSTOMER, and provided that such dissemination is limited and not intended to replace the SERVICE or any other CUSTOMER’s website as the main channel to access the CUSTOMER DATA;
4. The Information may be distributed within the VISITOR’s company, organization or group provided that the VISITOR shall use its best efforts to ensure that:
a. such Information includes all copyright or other proprietary rights notices; and
b. all other users of the CUSTOMER DATA within the Visitor’s company, organization or group are subject to all the Restrictions set out in this Schedule.
SCHEDULE C
For the purposes of this SCHEDULE C, “SERVICE” shall mean any of the individual electronic information services provided by INDEXET in which the CUSTOMER DATA is incorporated and displayed to VISITORS.
INDEXET’S MINIMUM RESERVED AD REVENUE
The Minimum Reserved Ad Revenue, as defined by clause 1)i) of this agreement, is set to US$ __,____.00.
CUSTOMER’S ROYALTY FEES
INDEXET shall calculate the CUSTOMER’s Royalty Fees over any advertising revenues, derived from the bundling of ad banners (provided by Ad Networks chosen exclusively by INDEXET) with the CUSTOMER DATA within the SERVICE, which surpasses the MINIMUM RESERVED AD REVENUE, which for any month shall be:
The formula (R – A) x P where:
R = the monthly advertising revenue amount collected during the relevant month for distribution of the CUSTOMER DATA in the relevant SERVICE after deducting the MINIMUM RESERVED AD REVENUE as defined in clause 1)i) of this agreement;
A = “Adjustments” means any commissions paid to AUTHORIZED DISTRIBUTORS and billing agents; billing adjustments made in the ordinary course of business; amounts credited for refunds; sales or other taxes (including taxes in the nature of withholding tax) and duty or duties payable;
P = ____ %
ROYALTY FEES PAYMENT SCHEDULE
The CUSTOMER’s Royalty Fees shall be paid to the CUSTOMER according to clause 8)a) and the Payments shall be paid according to the following schedule:
1. Payments shall be issued, in arrears, on the 10th day of the subsequent month for which they are due (i.e.1: if the contract is signed in January, and the accumulated Royalty Fees are $390.00 by the end of February, INDEXET will hold this amount until it reaches US$499.00 before issuing a payment. / i.e.2: if the contract is signed in January, and the accumulated Royalty Fees are $750.00 by the end of March, INDEXET will then issue the first payment on April 10th. / i.e.3: if the contract is signed in January, and the accumulated Royalty Fees are $1,100.00 by the end of February, INDEXET will then issue the first payment on March 10th.);
2. The Payments cycle starts on the first subsequent month after this contract is signed (i.e.: if the contract is signed in January, the Payment cycle starts in February of the same year).
SCHEDULE D
ADITIONAL SUPPORT FEES
The fee to be charged per additional support query, according to clause 7)b), is US$ 1.00 (ONE AMERICAN DOLLAR).