This bobile Publisher Agreement was updated on April 23, 2014. By accessing and using the bobile Ltd. (“bobile”, “us” or “we”) technology and the bobile website following such update, you indicate that you have read and agree to the updated terms and conditions of this bobile Publisher Agreement, including those attached hereto as Appendix A (collectively, the “Agreement”).
You may create your Mobile App(s) by registration & publishing with bobile as a Publisher and acceptance of the terms and conditions of this Agreement, including without limitation, the terms of your chosen Subscription Plan. During such registration, you will be provided with or may choose a username and password with which you shall be able to access your online account available on www.bobile.com (the “Publisher Account” or “your Account” or “Account”). You may create additional Mobile Apps by using any tools and/or features available in your Account (to the extent applicable).
We may provide you with various subscription plans that will allow you to choose: (i) what kind of administrative and promotional tools will be available to you when using the Mobile App(s);(ii) features to be included in your Mobile App; (iii) services to be included in your chosen Subscription Plan; and (iv) the fee for your chosen Subscription Plan, all of which are available via the bobile Platform (the Subscription Plans may be updated from time to time by bobile).
You may utilize our submission services, which will allow you to submit your Mobile App(s) to the mobile application stores or marketplace of mobile applications, as detailed in Section 6 in Appendix A attached hereto.
BY CLICKING THE “PUBLISH” OR “TAP” (OR SIMILAR LANGUAGE PROVIDED BY bobile) BUTTON, BY ACCESSING OR USING THE bobile PLATFORM OR YOUR PUBLISHER ACCOUNT, OR BY CREATING A MOBILE APP, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT AND AGREE THAT bobile WILL TREAT YOU AS A PUBLISHER ON THE bobile PLATFORM FROM THAT POINT ONWARDS. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE bobile PLATFORM AND/OR CREATE AND/OR DISTRIBUTE A MOBILE APP VIA THE bobile PLATFORM. IF YOU CONSENT TO THIS AGREEMENT ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT AND YOUR CONSENT TO THIS AGREEMENT WILL BE TREATED AS THE CONSENT OF THE BUSINESS. IN THAT EVENT, “PUBLISHER”, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT BUSINESS. YOU ALSO CONSENT TO THE USE OF: (A) ELECTRONIC MEANS TO COMPLETE THIS AGREEMENT AND TO PROVIDE YOU WITH ANY NOTICES GIVEN PURSUANT TO THIS AGREEMENT; AND (B) ELECTRONIC RECORDS TO STORE INFORMATION RELATED TO THIS AGREEMENT AND YOUR USE OF THE bobile TECHNOLOGY. bobile RECOMMENDS THAT YOU PRINT OUT OR SAVE A LOCAL COPY OF THE AGREEMENT FOR YOUR RECORDS.
For any questions with respect to your account, please contact us at:
Last updated: April 22, 2014
The following capitalized terms shall have the following meanings:
2. “bobile Platform” means bobile Technology and/or the TPC.
3. “bobile Technology” means bobile’s proprietary Mobile Apps generating platform and any other products and services provided by bobile therein or in connection thereto for use and/or display on the internet, mobile phones, tablets and/or any other current or future platform or media (whether owned by bobile or licensed by it) including, but not limited to, software and tools provided by bobile to Publisher which enable the implementation and administration of the Mobile App(s) in connection with the bobile Technology, but not including TPC.
4. “Content” means data, information, graphics, links, web pages, signs, images, software and code, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.
5. “Content Sharing Services” means the service, software and features made available by bobile which enables web and/or mobile publishers and Content providers to access, distribute and share their Content with third parties as well as select and use third party Content shared by others.
6. “End User” means an individual user who downloads, installs or uses a Mobile App.
7. “End User Content” means any Content, information or other materials which End Users post, upload, link and otherwise submit to or via a Mobile App.
8. “Export Control Laws” means any U.S. export laws and regulations including export or re-export directly or indirectly of technology, incl\uding to countries embargoed by the U.S.
9. “Fraudulent Activity” means any of the following activities: (a) fictitious installation and/or download of a Mobile App; (b) installing or uninstalling any program (including, without limitation, a Mobile App) on an End User’s mobile device, without the End User’s consent or any other similar practices; (c) automated, deceptive, fraudulent, encouraged or other invalid searches in any web search feature, or searches for any purpose other than organic retrieval of information and web browsing in good faith; (d) automated and/or fraudulent clicks on: ads, sponsored links, sponsored search results, Mobile App components, or such clicks for purposes other than retrieval of information in good faith; (e) initiating or using a promotion in connection with a Mobile App which violates any applicable law or regulation, or an existing agreement between Publisher and bobile or which is not consistent with industry standards and good practices; (f) reverse engineer, bypassing and/or circumventing the bobile Platform, including any subscription plan available therein; (g) hacking to a Mobile App or the bobile Platform or any part thereof, or using a Mobile App or the bobile Platform in order to hack into public or private infrastructure or equipment; or (h) using in connection with a Mobile App or the bobile Platform any material that contains software viruses or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment.
10. “Intellectual Property Right(s)” means: (i) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (ii) all registered and unregistered trademarks, service marks, trade names, trade dress, logos and registrations and applications for registration thereof; (iii) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (iv) all trade secrets and confidential business and technical information (including, but not limited to, research and development, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production and other designs, drawings, engineering notebooks, industrial models, software and specifications); (v) all rights in databases and data compilations, whether or not copyrightable; and (vi) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
11. “Marks” mean trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered.
12. “Mobile App(s)” means any mobile application and/or mobile website generated or administered by Publisher via its use of the bobile Technology in compliance with the terms and conditions of this Agreement, for use on mobile phone device, tablet, television and/or any other current or future platform or media.
14. “Monetization Tool(s)” means advertisement and/or any other sponsored service, link or offering and/or search services, embedded in, bundled with or attached to the installation / download, usage or display of the Mobile App(s), and/or any promotion and/or marketing materials and/or merchandise provided by bobile in connection with this Agreement. Monetization Tools may include: web search services, advertisements or offering of additional applications or services.
15. “Prohibited Activity” means: (a) any activity or use of Content that (i) encourages conduct that would be considered a criminal offense or could give rise to civil liability, or violates any applicable law, regulation or order of any court or tribunal including, but not limited to, collecting, using or disclosing personal information from any individuals in violation of applicable law, including without limitation personal information of minors in violation of applicable privacy law, including, without limitation, the Children’s Online Privacy Protection Act of 1998, regulation and/or industry best practices; (ii) violates, misappropriates, or infringes any third party (including, without limitation, End Users) Intellectual Property Rights, rights of privacy and publicity, or other proprietary or legal rights; (iii) materially interferes or disrupts web navigation or browsing; (iv) involves rewards programs or actual monetary exchanges, without bobile’s express written approval; or (v) modifications to other mobile applications (and/or Content on such mobile applications) used by End Users and controlled by third parties without the End Users’ consent; (b) usage which adversely affects public or private infrastructure or equipment; (c) installation or un-installation of a Mobile App that is generated without an accurate and conspicuous disclosure and without informed consent or any other similar practices; (d) Fraudulent Activity; (e) use, endorsement, and/or promotion of Content which: (i) is, promotes or advocates pornographic, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, gambling-related, or discriminatory activity, promotes illegal drugs or arms trafficking, violates Export Control Laws, creates a risk to a person’s safety or health, compromises national security or interferes with an investigation by law enforcement officials, or is offensive, misleading or deceptive material or is any type of malware; (ii) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; or (iii) contains excessive or inappropriate advertisements as determined by bobile in its sole discretion; (f) using a Mobile App or the bobile Platform to offer, distribute or promote any mobile application that is substantially similar to the Mobile App; or (g) redirecting traffic or replacing web pages or any other pages available in a Mobile App to web pages or other pages which promote Content or products which may adversely affect the use of the Mobile App and/or violates any of the prohibitions contained herein;
16. “Publisher” means an individual or entity that creates, implements, distributes, makes available or administers a Mobile App.
17. “Publisher Materials” means any Content provided or used by Publisher in connection with a Mobile App, including that which a Publisher adds to any part of the bobile Technology, the TPC, or to Publisher’s website, including any new releases or new versions thereof and any Updates thereto.
19. “Third Party Content” or “TPC” means any third party Content and technology that is offered, distributed or promoted in or from the bobile Technology.
20. “Updates” means bug fixes, error corrections and patches; and does not include new versions or new releases.
1. Publisher License. bobile hereby grants to Publisher a limited, non-exclusive, non-assignable, non-transferable, non-sub-licensable right and license, during the Term to use the software and tools that are provided as part of the bobile Technology solely to create, use, distribute and administer Mobile App(s) (collectively, the “Publisher License”).
2. bobile License. Publisher hereby grants to bobile and its corporate affiliates a worldwide, royalty free, non-exclusive right and license (with the right to sublicense) to: (a) use, reproduce, modify, crewel, catch, distribute, perform, transmit, display and access the Publisher Materials which Publisher has added to the bobile Platform solely for the purposes of making the Publisher Materials available in the Mobile App(s), promoting Mobile App(s) and implementing any changes or updates to Mobile App(s) as set forth herein; (b) distribute, promote, place and display the Mobile App, including the Publisher Materials; (c) access and query Mobile App(s) as set forth in this Agreement, including without limitation to run any queries necessary to confirm Publisher’s compliance with the terms and conditions of this Agreement or to implement any changes or updates to the Mobile App(s); (d) implement, provide or make available from time to time Monetization Tool(s) as may be applicable; and (e) submit the Mobile App(s) to App Store(s) under bobile account and/or under Publisher Account, as applicable (collectively, the “bobile License”). In the event that Publisher wishes to exclude the Publisher Materials from any such promotion or distribution, Publisher shall notify bobile via the “Contact Us” link which is available at its Publisher Account.
3. Each party grants to the other party a limited, worldwide, non-sub licensable, non-exclusive license to use the other party’s Marks solely to engage in the marketing and promotional activities set forth in this Agreement. Any use by one party of a Mark of the other party must be in accordance with applicable law and with respect to bobile, solely in accordance with bobile’s trademark policy. Each party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from such party’s use of a Mark of the other party as permitted hereunder will inure solely to the benefit of the other party.
1. Publisher agrees to provide accurate, current and complete information during the registration process and to keep such information up to date. bobile reserves the right to suspend or terminate the Publisher Account if in bobiles’ sole determination it reasonably believes that any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. Publisher is responsible for safeguarding and maintaining the confidentiality of its username, password and corresponding Publisher Account information. Publisher agrees that it is entirely and solely responsible for any and all activities or actions that occur under its Publisher Account, whether or not Publisher has authorized such activities or actions. Publisher agrees to notify bobile in writing of any unauthorized and/or fraudulent use of its Publisher Account, a Mobile App, the name of its Mobile App or its username or password. For purposes hereof, Publisher’s identifying details will be those provided by it during the registration process for creating its first Mobile App hereunder or as may be updated during the Term (as defined below) subject to bobile’s prior written approval.
2. Without derogating from any of the terms and conditions of this Agreement, in the event that Publisher does not access its Publisher Account for a consecutive period of at least six (6) calendar months, bobile may modify any Mobile App (including its features and/or functionality) or remove from the bobile servers any Mobile App associated with such Publisher Account or suspend access to or terminate such Publisher Account without notice.
3. bobile retains the exclusive right in its sole discretion to: (a) determine which features, services, products, software or other tools will be available for Publisher’s use via the bobile Platform; and (b) add, change or remove any Content, materials and/or functionality made available in any Mobile App or in the bobile Platform at any time, with or without reason. For example, bobile may change the settings and/or appearance of any part of the bobile Platform or any elements thereof which may be provided in a Mobile App or otherwise, without prior notice or bobile may provide any Updates, new versions, new releases and upgrades to any bobile Platform or any other elements thereof. Notwithstanding the foregoing, bobile will do its reasonable commercial efforts that Publisher Materials will not be modified, but only the format of the Publisher Materials as provided in a Mobile App will be changed as a result of the technical removal or addition of a functionality or element of a bobile Platform from a Mobile App.
4. bobile retains the exclusive right to determine, implement, provide or make available from time to time any Monetization Tool(s). Publisher will not: (i) modify, remove or interfere with the Monetization Tools; (ii) provide, make available or link to services, functionality or features that compete with or are similar to or are substitutes for, the Monetization Tools; or (iii) permit, authorize or encourage a third party to engage in any of the activities set forth in clauses (i) or (iii).
5. In the event that bobile offers certain unique feature or functionality, such as video search or music features as part of the bobile Platform (each a “Unique Feature”), Publisher shall not modify, remove or interfere with Unique Features, including but not limited to, the default settings and/or the definitions thereof.
1. Terms of Payment. In consideration for the Subscription Plan, Publisher will pay bobile the fees applicable to its chosen Subscription Plan. Certain Subscription Plans entail recurring billing (monthly/quarterly/annually), others may be subject to onetime fee or are free of any charge. For subscription plans that involve publishing on a third party market (Apple App Store/Google Google Play and others) all applicable fees are pre-paid via the bobile Platform and are non-refundable. For subscription plans that do not involve publishing on a third party market all fees are fully refundable within 7 days notice from initial purchase date to bobile via (firstname.lastname@example.org). Publisher acknowledges and agrees that, if applicable to Publisher, V.A.T will be added to all subscription fees as required by Israeli law. In case of recurring billing, Publisher will be automatically charged in each calendar month in accordance with the terms of its chosen Subscription Plan.
2. Termination of Subscription Plan. In the event Publisher terminates its subscription to any paying Subscription Plan, then such termination shall take effect in the next billing cycle. bobile will not refund Publisher for early termination of the Agreement or for any paying Subscription Plan.
3. Reports. bobile will provide Publisher with access to an online page hosted on bobile’s servers where it can view reports and analysis regarding the usage of its Mobile App. bobile will not be liable for any unavailability or inaccuracy, temporary or otherwise, of any reports, data or information provided online.
1. Publisher may upgrade or downgrade its Subscription Plan at any time during the term of this Agreement by using bobile Platform. Any downgrade of Subscription Plan will enter into effect as from Publisher’s consecutive billing date.
2. If Publisher exceeds its current Subscription Plan installation and/or download quota for creating Mobile Apps and fails to upgrade its Subscription Plan (the “Payment Violation” and “Payment Violation Event”) the following terms shall prevail:
1. The Mobile App control panel may cease to be available to Publisher.
2. Certain features of the Mobile App(s) that were available to Publisher via the Publisher Account may cease to be available.
3. Publisher acknowledges and agrees that until Payment Violation is cured: (a) if Publisher has placed advertisement(s) in the Mobile App, using bobile Platform, it will not be entitled to receive any payment with respect to any advertisement, as of the date in which the Payment Violation Event occurs and until the Payment Violation is cured (if cured), or (b) if Publisher has not placed advertisements, which are available via the bobile Platform, in the Mobile App, bobile will have the right, at its sole discretion, to place such advertisements in the Mobile App. Publisher acknowledges and agrees that the foregoing measure is adequate and reasonable compensation due to bobile in light of any Payment Violation.
3. Notwithstanding the foregoing, bobile shall have the right to (a) take any additional actions as permitted by this Agreement when a Fraudulent Activity is taking place; (b) deactivate the Mobile App and (c) immediately terminate this Agreement, without notice, following a Payment Violation Event.
1. Eligibility. In order to use the Submission Services, Publisher will enter into separate agreement with each of the application stores or marketplaces of mobile applications (the “App Store(s)”) and thereby create an account. Once Publisher account with the relevant App Store is activated, it will be able to use the Submission Services.
2. License. Publisher hereby agrees to provide bobile with its account login details with each of the applicable App Stores (the “Account Details”). By providing bobile with the Account Details, Publisher hereby authorizes and grants bobile a right and license to (i) submit its Mobile App on Publisher’s behalf to the App Store (s) of its choice, (ii) upgrade or update its Mobile App resource files, to the extent such upgrade or update is applicable and/or requested by Publisher and/or the relevant App Store(s) or as otherwise permitted by this Agreement, and (iii) remove a Mobile App from the App Store. Publisher represents and warrants that it will provide bobile with accurate Account Details and any additional information reasonably requested by bobile for the purpose of performing the actions permitted under this section.
3. Submission Services may include, at bobile’s sole discretion, and on a case by case basis, a review by bobile of the Mobile App(s) and correspondence with Publisher prior to submission to the respective App Store or thereafter in the event of rejection.
4. During the Term and the Wind-down Period of this Agreement, bobile shall keep Publisher Account Details. bobile will use commercially reasonable efforts to safeguard Publisher Account Details.
5. Providing Submission Services shall not derogate from Publisher’s undertakings under this Agreement, including for Mobile App Content and functionality. Publisher shall remain the developer of the Mobile App and therefore responsible for the Content that Publisher adds and/or makes available to or in the Mobile App.
7. Terms of Payment. In consideration for the Submission Services, Publisher will pay bobile a one-time fee, if applicable to its chosen Subscription Plan, as set forth in the bobile Platform (the “Submission Services Fee”). The Submission Services Fee may be updated from time to time. Publisher acknowledges and agrees that it is solely responsible for any and all costs and expenses relating to or required in connection with Publisher using any third party’s services in connection with the development of the Mobile App. In addition to any refund policy of bobile (if any), if the submission of any Mobile App is denied by the applicable App Store, then the respective Submission Services Fee will not be refunded. Publisher acknowledges and agrees that notwithstanding the Submission Services provided by bobile hereunder, each App Store may charge Publisher with a submission fee for opening a developer account with such App Store or any other fees determined by the App Store. Such fees will be paid by Publisher directly to such App Store.
1. Payments by Publisher under this Agreement may be processed by bobile or a third party appointed by bobile for such purpose (the “Payment Processor”), and which may be replaced from time to time, at bobile’s sole discretion.
2. All payments are made in currency as available by the Payment Processor, and are nonrefundable unless specified otherwise under the respective service.
3. All fees hereunder are exclusive of all taxes, levies, or duties imposed by the taxing authorities. Publisher acknowledges and agrees that it will bear and be responsible for all applicable taxes, duties and other governmental charges imposed on it with respect to this Agreement.
4. ransactions made over the weekend may be charged on the first following business day.
5. To the extent that a payment is required for a certain service, Publisher: (a) will be required to provide a credit card issued by one of the major credit card companies or any other payment method to the extent offered in connection with the respective service; and (b) will be able to use a service under this Agreement after the Payment Processor verifies that Publisher’s credit card or any other payment method it provided (to the extent applicable) for payment, is accurate and valid. Once Publisher has initiated payment, the Payment Processor will inform Publisher whether the payment has been successfully processed or if it failed. If payment verification fails, Publisher may be asked to provide an alternative credit card or payment method (to the extent applicable).
1. Publisher will not attempt to interfere with or disrupt the bobile Platform or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the bobile Platform for Publisher’s own use as permitted herein). Except as expressly specified in this Agreement, Publisher will not: (a) use, copy, create derivative works of or modify the bobile Platform or any part thereof; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the bobile Platform to any other person or entity; or (c) use the bobile Platform or a Mobile App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. Publisher will not disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the bobile Platform or a Mobile App or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
2. Publisher represents and warrants that the Publisher Materials do not contain, distribute or promote any Prohibited Activity or any Content that may be regarded as Prohibited Activity. In addition, Publisher shall not, nor shall it allow any other person or entity to: (a) create, distribute, promote or use a Mobile App by any means that constitute a Prohibited Activity; and (b) use in connection with a Mobile App or the bobile Platform any Content generated by any other person or entity which is engaged in any Prohibited Activity.
3. Publisher represents and warrants that it shall not, and shall not allow any third party to: (i) engage in any Prohibited Activity in connection with or pertaining to a Mobile App or the bobile Platform; (ii) use a Mobile App in any manner that constitutes Prohibited Activity; (iii) add to, post or make available via a Mobile App or the bobile Platform any Prohibited Activity; or (iv) distribute a Mobile App from a website that offers, distributes or promotes Prohibited Activity or as part of a promotion that includes Prohibited Activity. In the event that Prohibited Activity pertaining to any Mobile App is detected, Publisher shall immediately remove and resolve such Prohibited Activity.
4. Without limiting any other terms of this Agreement, Publisher acknowledges and agrees that at any time during the Term and the Wind-down Period, bobile has the right, at its sole discretion (without notice to Publisher) to: (a) remove Prohibited Activity and/or Fraudulent Activity from a Mobile App or the bobile Platform or any Content which constitutes a Prohibited Activity and/or Fraudulent Activity; (b) take any action needed to prevent or correct Prohibited Activity; (c) assist any governmental agency or other applicable legal authorities with respect to any Prohibited Activity that was detected in or made available via a Mobile App or the bobile Platform; and/or (d) report any Prohibited Activity to any governmental agency or other applicable legal authority with respect to any Prohibited Activity.
5. Publisher shall not engage in and shall not encourage any other person or entity (including, without limitation and as applicable, End Users) to engage in Fraudulent Activity and/or Prohibited Activity in connection with a Mobile App or the bobile Platform. Without limiting any other terms of this Agreement or other remedies available to bobile, in the event that Publisher or any other third party engages in any Fraudulent Activity and/or Prohibited Activity, bobile shall have the sole and exclusive right to disable a Mobile App, suspend the Publisher Account or take any other applicable measures at its sole discretion.
6. The Terms will be embedded in any Mobile App. Publisher shall: (a) abide by the Terms; (b) use its best commercial efforts to ensure that the End Users comply with the Terms; and (c) inform bobile promptly of any known violation or breach thereof. Publisher shall not: (i) modify or change any of the terms contained in the Terms; (ii) distribute a Mobile App to End Users without making the Terms available to End Users or interfere with the provision of the Terms to End Users; or (iii) circumvent the requirement that the End Users accept the Terms by accessing, using and/or downloading a Mobile App. The foregoing is a material obligation of Publisher hereunder.
7. Publisher will not use the bobile Platform or a Mobile App to offer, display, distribute, transmit, route, provide connections to or store any Content or any other material that infringes copyrighted works or otherwise violates or promotes the violation of the Intellectual Property Rights of any third party. bobile has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. [The bobile Copyright Policy is available at: http://www.bobile.com ]. In compliance with the safe harbor provision(s) of the Digital Millennium Copyright Act of 1998 (“DMCA”), bobile reserves the right to take down any and all Content posted via use of the bobile Platform or a Mobile App at any time in its sole discretion. Without limiting other provisions herein, Publisher agrees to assist bobile with any such compliance activities. Without limiting any other terms of this Agreement, if a Mobile App allows End Users to offer, display, distribute, transmit, route, provide connections to or store any material or includes services through which other users can do the same, Publisher will: (i) adopt a policy that complies with the eligibility requirements for the DMCA safe harbors; (ii) reasonably enforce and implement said policy; and (iii) satisfy all other DMCA requirements for safe harbor eligibility, including, but not limited to, responding expeditiously to remove, or disable access to, material that is claimed to be infringing or to be the subject of infringing activity upon receipt of notification of claimed copyright infringement from us or a third party, as required by the DMCA.
10. Publisher represents and warrants that it shall: (a) not use the bobile Platform or a Mobile App in any manner that may harm the privacy rights of End Users or other third parties, and (b) not collect, transmit, copy, use or commercialize in any manner any End User personally identifiable information.
12. Publisher is and will be at all times responsible for all distribution channels and methods of any Mobile App(s). bobile will have the right to remove any Mobile App which, in bobile’s sole discretion, was distributed in violation of any applicable law and industry best practices.
13. Publisher acknowledges and agrees that in addition to compliance with this Agreement and all bobile policies incorporated herein, any distribution of a Mobile App on or from any third party platforms and/or services (the “Third Party Services”) shall be subject to the respective terms and conditions maintained by the Third Party Services (by way of example only, such Third Party Services may include Apple Store; Google Play or Amazon Appstore). bobile is not responsible for any Third Party Services or use thereof. Additionally, unless Publisher receives bobile’s prior written approval, Publisher shall not permit or authorize a third party to alter or modify any Mobile App.
1. Publisher agrees that bobile may: (a) feature a Mobile App in different marketing outlets and/or collateral, including without limitation newsletters, case studies, email or advertisement campaigns and web pages; (b) identify Publisher as a user of the bobile Platform on bobile websites, client lists, press releases, and in other marketing; and (c) publish a brief description and/or case study highlighting Publisher’s deployment of a Mobile App and use of the bobile Platform (each a “bobile Promotion”). In the event that Publisher wishes to be excluded from a specific bobile Promotion, Publisher shall notify bobile in writing via the “Contact Us” link which is available at its Publisher Account. Unless otherwise agreed by parties, Publisher shall not be entitled to any compensation as a result of any bobile Promotion.
1. Except as expressly granted in this Agreement, as between Publisher and bobile, bobile retains all right, title and interest in and to the bobile Platform and the bobile Marks (except for the Publisher Materials) and any derivatives thereof, including any Intellectual Property Rights therein (collectively: “bobile IP”). As between bobile and Publisher, all use of the bobile IP shall inure to the benefit of bobile and Publisher shall not: (y) contest, or assist others to contest, bobile’s rights or interests in and to the bobile IP or the validity of bobile’s rights in and to the bobile IP and all applications, registrations or other legally recognized interests therein, or (z) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to said bobile IP. All rights in the bobile IP which are not expressly granted herein are reserved by bobile. Publisher will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the bobile Platform and Mobile App.
2. Publisher shall not assert any Intellectual Property Rights with respect to the bobile Platform or any element, derivation, adaptation, variation or name thereof. Except permitted by this Agreement or by the terms and condition of a certain Subscription Plan, a Mobile App shall not include and/or be promoted using any Intellectual Property Right of bobile or its authorized third-party licensors, unless and to the extent that bobile adds its own button, logo or any other branded element to a Mobile App or unless otherwise provided in this Agreement.
3. Publisher shall not remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on any Content provided by bobile, whether available via a Mobile App or otherwise.
4. Except as expressly granted in this Agreement, as between bobile and Publisher, Publisher retains all right, title and interest in and to the Publisher Materials and its Marks, and any derivatives thereof, including any Intellectual Property Rights therein.
5. bobile encourages all its publishers including Publisher, to upload, post, publish or make available any Publisher Materials on the Mobile App. bobile further encourages Publisher to design, develop, conceive, categorize and/or implement new features, sections, business models, ideas or inventions within the Mobile App (“Publisher Inventions”). When doing so, Publisher grants bobile an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, sub-licensable and worldwide license, to use, reproduce, distribute, transmit, make derivative works of, display, copy, make available to the public and perform that Publisher Inventions, whether through the Internet, any mobile device or otherwise, in any media formats and through any media channels known today and developed in the future (“bobile License to Publisher Inventions”). Subject to the above mentioned bobile License to Publisher Inventions, Publisher retains all right, title and interest in and to the Publisher Inventions, including any Intellectual Property Rights pertaining thereto. Nevertheless, it is hereby acknowledged and agreed that any application or registration of any of Publisher Inventions (e.g. patent, copyright or trademark application or registration, or other application or registration of intellectual property rights) will be subject to bobile License to Publisher Inventions, and will not undermine bobile rights under the bobile License to Publisher Inventions herein in any manner.
6. You agree that bobile may remove at any time any Publisher Materials or Features you have uploaded to the Mobile App in its sole discretion, in accordance with the terms herein.
1. During the Term, Publisher may have access to certain non-public, proprietary, confidential and/or trade secret information of bobile, whether written or oral, and regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together: “bobile’s Confidential Information”). Publisher agrees: (i) not to disclose any of bobile’s Confidential Information to any third parties; (ii) not to use any of bobile’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; and (iii) to keep bobile’s Confidential Information confidential using the same degree of care Publisher uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care.
2. At any time during the Term, upon the written request of bobile, Publisher shall return to bobile, or destroy, in accordance with bobile’s written instructions, all of bobile’s Confidential Information in its possession, including any writing or recordings whatsoever prepared by Publisher based upon bobile’s Confidential Information, and Publisher shall provide bobile with a written certificate, signed by an authorized officer of Publisher, evidencing the complete and full execution of the provisions of this Section 11.
3. Unauthorized disclosure or use of bobile’s Confidential Information may give rise to irreparable injury, which may not be adequately compensated by damages. Publisher agrees and acknowledges that money damages are not a sufficient remedy for any breach of this Agreement by the Publisher and that bobile shall be entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach thereof, in addition to any other remedies available at law or in equity.
4. Publisher acknowledges and agrees that bobile may provide to the applicable authorities or any court of competent jurisdiction information contained in or related to the Publisher Account in the event that bobile is required by legal process, order of any court of competent jurisdiction, or any applicable law, rule or regulation to provide such information.
5. Publisher shall keep in strict confidence and shall not disclose to any third party any of bobile’s Confidential Information during the Term hereunder and for a period of three (3) years following the termination of this Agreement.
1. bobile represents and warrants that it will use commercially reasonable efforts to perform its obligations hereunder. bobile is not responsible for and does not provide any warranty with respect to any Content (including, without limitation, Content part of a Mobile App, TPC, End User Content or Publisher Materials) or any third-party sites that can be linked through the bobile Platform or a Mobile App. Further, bobile does not guarantee that any Content (including, without limitation, TPC, End User Content or Publisher Materials) will be made available through a Mobile App, the bobile Platform, continuously or at all. WHILE bobile IS UNDER NO OBLIGATION TO DO SO, WITHOUT LIMITING ANY OTHER TERMS OF THIS AGREEMENT, bobile RESERVES THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM ANY APPLICATION(S) OR MOBILE APP(S) WITHOUT NOTICE IN THE EVENT SUCH CONTENT IS PROVIDED IN VIOLATION OF THE TERMS OF THIS AGREEMENT. bobile does not have any obligation to monitor the End User Content or the Publisher Materials that are uploaded, posted, submitted or otherwise transmitted using a Mobile App or otherwise, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the End User Content, Publisher Materials or anything said, depicted or written by Publishers or End Users, including, without limitation, any information obtained by using any Mobile App. bobile does not endorse any End User Content or Publisher Materials or any opinion, recommendation or advice expressed therein and Publisher agrees to waive, and hereby does waive, any legal or equitable rights or remedies Publisher has or may have against bobile with respect thereto.
2. bobile does not make any representation with respect to so-called “open source” or free software that may be included in the bobile Platform. Any open source software that may be accompanying the bobile Technology is licensed to you in accordance with the applicable open source license or copyright notice accompanying such open source software and bobile hereby disclaims any and all liability to you or any third party related thereto.
3. THE bobile PLATFORM AS WELL AS ANY MOBILE APPS ARE PROVIDED BY bobile “AS IS”. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULLEST EXTENT ALLOWABLE BY LAW, bobile MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT, OR THOSE ARISING IN THE COURSE OF OR CONNECTED TO THE PERFORMANCE HEREUNDER, AND DISCLAIMS SUCH WARRANTIES. IN ADDITION, bobile DOES NOT REPRESENT OR WARRANT THAT: (I) THE bobile PLATFORM OR ANY OF ITS PRODUCTS, SERVICES OR SOFTWARE WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE bobile PLATFORM OR ANY OF ITS PRODUCTS, SERVICES OR SOFTWARE WILL BE UNINTERRUPTED; (III) PUBLISHER WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM PUBLISHER’S USE OF THE bobile PLATFORM OR ANY MOBILE APP; OR (IV) ANY MOBILE APP OR ANY CONTENT WILL BE MADE AVAILABLE VIA THE bobile PLATFORM OR OTHERWISE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
5. Publisher shall keep in strict confidence and shall not disclose to any third party any of bobile’s Confidential Information during the Term hereunder and for a period of three (3) years following the termination of this Agreement.
1. Publisher (the “Indemnifying Party”) shall defend, hold harmless, and indemnify bobile, and/or its subsidiaries, affiliates, directors, officers, employees, agents, successors and permitted assignees (collectively “Indemnified Party”), from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities of any kind, (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or filed (collectively, “Claims”) brought or made by any third party against the Indemnified Party arising out of: (a) a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under this Agreement; (b) any use of the bobile Platform and/or a Mobile App in any manner inconsistent with or in breach of this Agreement; (c) violation of End User’s privacy rights by Publisher; or (d) the End Users’ use of a Mobile App.
2. The Indemnified Party shall: (a) promptly notify the Indemnifying Party of such Claim; provided that a failure to give such prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Article, (b) provide the Indemnifying Party, at the cost of the Indemnifying Party, with reasonable information, assistance and cooperation in defending the lawsuit or Claim, and (c) give the Indemnifying Party full control and sole authority over the defense and settlement of such Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior approval and provided further that Indemnified Party shall not be required to allow Indemnifying Party to assume the control of the defense of a Claim to the extent that Indemnified Party determines that (i) such claim relates to any bobile Technology, (ii) any relief other than monetary damages is sought against Indemnified Party, (iii) there may be a conflict of interest between the Indemnifying Party and Indemnified Party in the conduct of the defense, or (iv) settlement of, or an adverse judgment with respect to, such Claim could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of Indemnified Party, and in such events the costs of defense will be considered “Claims” as defined above. The Indemnified Party may join in the defense of such Claim with counsel of its choice at its own expense.
1. IN NO EVENT WILL bobile AND ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO PUBLISHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE CONFIGURATION, INSTALLATION, DISTRIBUTION, DISPLAY OR USE OF OR INABILITY TO USE THE bobile PLATFORM OR A MOBILE APP UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT bobile OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT SHALL bobile’S OR ITS THIRD PARTY LICENSORS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE REVENUES GENERATED FROM PUBLISHER DURING A TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
1. This Agreement shall commence on the date Publisher agrees to the terms and conditions of this Agreement as set forth above and shall continue in force thereafter, unless terminated or expired as provided herein (the “Term”).
2. Either party may terminate this Agreement at any time by written notice to the other party for any reason and without liability for such termination.
3. This Agreement will automatically and immediately expire or terminate: (i) at such time that Publisher stops paying bobile the fees under its chosen Subscription Plan; or (ii) upon the elapse of thirty (30) days as of the date in which Publisher closed its Publisher Account.
4. bobile may immediately suspend the Publisher Account or the functionality of certain Mobile App(s) or any service thereof, deactivate a Mobile App or terminate this Agreement, in any one of the following instances: (a) if Publisher breaches any obligation, representation and/or warranty contained in this Agreement; (b) if Publisher engages in any acts prohibited by this Agreement; (c) if Publisher engages in any action that, in bobile’s sole discretion, reflects poorly on bobile or otherwise disparages or devalues bobile’s reputation or goodwill; (d) if bobile is required to suspend or deactivate certain service in accordance with any applicable law or due to a court or governmental order; (e) if Publisher becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency, administration or receivership proceeding, or has any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within thirty (30) days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. If Publisher becomes subject to any of the events described in this clause (e) it shall immediately notify bobile in writing; or (f) if bobile reasonably determines that it is commercially impractical for bobile to continue supporting a Mobile App and the bobile Platform under the terms of this Agreement as a result of legal, business or technical considerations.
5. Upon the termination or expiration of this Agreement for any reason: (a) all rights and licenses granted hereunder by each party shall cease immediately, except for (i) bobile License, which shall remain in effect until the earlier of: (a) Publisher removes the Mobile App from bobile Platform or (b) bobile decides to remove the Mobile App(s) from the bobile Platform; (ii) bobile License to the Publisher Inventions under Section 9.5 (collectively, the “Wind-down Period”); (b) Publisher shall promptly return to bobile, or destroy and certify the destruction of, all of bobile’s Confidential Information, in accordance with Section 11; (c) Publisher’s rights to use the bobile Platform or any part thereof in connection therewith and a Mobile App, as permitted under this Agreement, shall cease immediately; (d) Publisher shall immediately cease using the download link to any Mobile App; and (e) bobile shall have the exclusive right to modify a Mobile App or remove any Mobile App from the bobile Platform and/or disable any Mobile App. bobile will not be liable to Publisher or any third party for termination of this Agreement or termination of Publisher’s access to the bobile Platform or a Mobile App. UPON ANY TERMINATION OR SUSPENSION, ANY PUBLISHER MATERIALS OR INFORMATION WHICH IS RELATED TO THE PUBLISHER ACCOUNT MAY NO LONGER BE ACCESSED BY PUBLISHER. Furthermore, bobile will have no obligation to maintain any information stored in its data centers related to the Publisher Account or to forward any information to Publisher or any third party.
6. Following the termination of this Agreement, any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination of this Agreement (including Sections 9, 10, 11, 13, 14 and 16 and this Section 15.6), shall be deemed to survive for as long as necessary to fulfill such purposes.
1. Modification. bobile reserves the right to modify, suspend, discontinue or terminate bobile Platform and/or the submission services, to update or terminate this Agreement at any time and without prior notice (including, without limitation any Subscription Plan), or to discontinue (temporarily or permanently) any or all of the Subscription Plans. If bobile updates this Agreement it will post the update on its website or provide you with notice of the update. However, it is Publisher’s responsibility to review the Agreement from time to time to check for updates. bobile will also update the “Last Updated Date” at the bottom of the page. By continuing to access or use a Mobile App, any TPC, bobile Technology or your Publisher Account after bobile has posted an update on its website or has provided Publisher with notice of an update, Publisher agrees to be bound by the updated Agreement. If the updated Agreement is not acceptable to Publisher, Publisher’s only recourse is to send us a request to deactivate your account or to cease using the Mobile App or the bobile Platform. Publisher can review the most current version of this Agreement at any time at: http://www.bobile.com/.
2. Eligibility for Entering this Agreement. To enter this Agreement and any Subscription Plan and/or receive Submission Services, Publisher must: (i) have a valid credit card with a reputable credit company with respect to subscription to a paid Subscription Plan and/or to the Submission Services; and (ii) be at least 18 years old or the legal age of majority in the jurisdiction in which Publisher resides.
3. All rights which are not expressly granted herein are reserved by bobile. Publisher may not make any use of the bobile Platform in whole or in part in any manner not expressly permitted by this Agreement
4. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any other prior or collateral agreements with respect to the subject matter hereof, whether oral or written.
5. Neither this Agreement nor any interest herein may be assigned by Publisher or any obligations of Publisher delegated without the prior written consent of bobile. Any attempted unauthorized assignment or delegation shall be null and void. bobile may assign or transfer this Agreement or any rights or delegate any obligations of bobile hereunder without Publisher’s consent. bobile will be released of all rights or liabilities under this Agreement upon consummation of such assignment, transfer or delegations.
6. This Agreement shall be binding on and inure to the benefit of each of the parties and their respective successors and assignees. This Agreement is not made for the benefit of any third party who is not a party hereto, and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under or by reason of this Agreement.
7. This Agreement will be governed by and construed under the laws of Israel, excluding its conflict of law rules and principles. Each party agrees to submit to the personal and exclusive jurisdiction of the courts of Tel-Aviv, Israel. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
8. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
9. If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.
10. The failure to require performance of any provision of this Agreement shall not affect a party’s right to require performance at any time thereafter; nor shall waiver of a breach of any provision constitute a waiver of the provision itself.
11. 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.
12. All notices required or permitted under this Agreement shall be in English and in writing and shall be delivered (a) to bobile – by facsimile, e-mail or other electronic means, by registered or certified mail (postage prepaid) or by overnight courier service, at the address set forth in Paragraph 1 of this Agreement or at such other address as bobile shall have furnished to Publisher in writing. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via facsimile or e-mail, (iii) within one (1) business day of being sent by overnight courier, or (iv) within three (3) business days of being sent by registered or certified mail, and (b) to Publisher – to the e-mail address provided by Publisher in connection with its Publisher Account. For purposes of the foregoing, bobile shall be permitted to rely upon the e-mail address provided by Publisher to bobile as provided above and shall not be responsible for delays in the delivery of e-mails which delays are not associated with bobile’s mail server.