Engage Terms

Outbrain.com Terms of Service Last Updated: August 2012

  1. INTRODUCTION.

    The following Terms of Use (these “Terms of Use”) govern your (hereafter you, your, user) use of the products and services available at the website located at the URL www.outbrain.com (the “Site“), which was created, and is controlled and operated by Outbrain Inc. (“Outbrain“). As further described below, the Site features Outbrain’s proprietary recommendation technology in its various forms (collectively, the “Service“) which may be used on the Site, or on your website or your affiliated websites via any software code that we may make available to you from time to time (such user is hereinafter, a “Partner“), used in accordance with these Terms of Use. By accessing this Site or using any part of the Service, you agree to be bound by these Terms of Use. If you do not agree to all of these Terms of Use, then you may not access the Site or use the Service. Your right to use the Site and the Service is expressly conditioned upon your assent to all of these Terms of Use, to the exclusion of all other terms. The Service is available only to individuals who are at least 18 years old, whether acting on their own behalf or as an authorized employee or representative of a corporation or other business entity. If you do not so qualify, do not attempt to register for or use the Services.

  2. MODIFICATIONS OF TERMS OF USE.

    Outbrain reserves the right, at its sole discretion, to modify or replace these Terms of Use at any time. You should come back and review these Terms of Use from time to time, as you are solely responsible for reviewing and becoming familiar with any such modifications. Use of the Service by you, even if you have previously registered to use the Service on your website, and do not return to the Site on an ongoing basis, following this notification, constitutes your acceptance of the Terms of Use as modified.

  3. DESCRIPTION OF SERVICE.

    The Service provides you with recommendations (“Recommendations“) for news articles, graphics, photographs, images, illustrations, software, audio clips and video clips (“Content“). Some Recommendations may consist of Content that our customers pay us to promote (“Promoted Content“). These Recommendations generate revenue (“Promotional Revenue“) for the Site from customers selected by Outbrain in its sole discretion. If you use the Service without registering on the Site, this Recommendation functionality will be automatically provided as part of the Service. If you register on the Site, you may control the settings for the Recommendation functionality, as described on the Outbrain Dashboard and in Section 6 below.

  4. LICENSE OF OUTBRAIN SERVICE.
    1. GRANT OF LICENSE.

      Subject to your full compliance with all of the terms and conditions of these Terms of Use Outbrain grants you a limited non-exclusive, revocable, nonsublicensable, nontransferable license to use (i) the Service; (ii) any application program interface or any other software code that we may make available to you from time to time provided by Outbrain (collectively, the “Code”); (iii) any Outbrain end-user documentation, solely when bundled with Service; and (iv) any upgrades, updates and new versions of the Service, as further described below. Such license shall include the right to use any Outbrain intellectual property rights associated with or related to use of the Code, other matters related to the Service, and the Outbrain end user documentation, solely in connection with the use of the Service as explained in the FAQ.

    2. RIGHTS TO SUBLICENSE.

      Pursuant to Section 4.A. above, you shall have the right to (i) contract consultants and contractors solely for the purpose of developing, manufacturing, testing, and supporting the use of the Services and the Code by you; and (ii) grant your end users sublicenses, subject to the provisions of Section 4.I below. Except as provided in this Section 4.B., you shall not have the right to sublicense any of your rights under these Terms of Use to any consultants, contractors, or other third parties.

    3. LICENSE RESTRICTIONS.

      You shall not use the Code in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email (“Spam“), multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, weapons and accessories. You shall implement the Services in a timely manner in accordance with all reasonable instructions provided to you by Outbrain from time to time.

    4. PLACEMENT AND LOOK AND FEEL OF THE SERVICE.

      You shall place the Service directly below the main Content on each page of your website on which the Service is installed. No other third party content recommendation service shall appear parallel with or above the Service on any page of your website on which the Service is installed. Further, you shall implement the Service in such a way that the look and feel of the Service shall not be confusingly similar with any other third party content recommendation service on your website.

    5. OTHER RESTRICTIONS.

      Except as expressly and unambiguously authorized under these Terms of Use, you may not (i) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the (a) collaborative filtering data and related reports (collectively, “Data“) to which Outbrain may provide you to access in a variety of formats, or (b) Code, or (ii) otherwise use the Code or the Service on behalf of any third party. Except as described in Section 4.G below, these Terms of Use do not include any right for you to use any trademark, service mark, trade name or any other mark of Outbrain or any other party or licensor. No rights or licenses are granted except as expressly and unambiguously set forth herein. If you violate any of the foregoing restrictions, Outbrain shall own all right, title and interest relating to any and all derivative works, inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, as they may relate to the use of the Service or the Code. You hereby agree to make all assignments necessary to accomplish the foregoing ownership.

    6. NEW VERSIONS AND UPGRADES.

      Outbrain may release updates, upgrades or new versions of the Service or the Code, or other software related to the Service, to be incorporated as instructed on the FAQ. You agree that any access to any Outbrain software granted pursuant to these Terms of Use will not limit or restrict Outbrain’s right to modify or replace such software in future versions of the Service. The licenses granted to you herein shall be deemed to include such items.

    7. TRADEMARK LICENSE.

      Outbrain hereby grants to you a personal, limited, non-exclusive, non-transferable, fully-paid license to use the Outbrain Marks (as defined in Section 18 below). You may use the Outbrain Marks in conjunction with your use of the Code, the Data or the Service on any pages of your websites or affiliate websites that feature any aspect of the Service. You may publish blog posts on your blog or affiliate blogs that include the use of Outbrain Marks at any time without additional authorization by Outbrain, provided that you make reasonable efforts to send the blog post to Outbrain prior to or concurrent with publishing thereof. Nothing in this Agreement grants you ownership or any rights in or to use the Outbrain Marks, except in accordance with this license. Under no circumstances may you disparage or otherwise abuse the Outbrain Marks, nor violate any terms of the User Conduct rules set forth in Section 5 below. The rights granted to you in this license will terminate upon any termination or expiration of these Terms of Use and you will no longer make any use of any Outbrain Marks.

    8. NO OTHER LICENSES.

      The licenses granted hereunder are specifically set forth herein, and no licenses are granted by Outbrain to you by implication or estoppel.

    9. END-USER LICENSING.

      You agree that for each of your websites and/or software product(s) that use the rights granted herein, such website’s terms and conditions will include terms to ensure that: (i) the Service, Data and the Code shall be at least as protected as your own proprietary software applications, and (ii) such proprietary software applications are protected by the terms of use on such website. Additionally, the privacy policy of the applicable website and/or software product(s) should explain that the Data is routed to a third party that owns such data, but such routing does not include any personally identifiable information. You agree to include in such terms and conditions for use outside of the United States any country-specific provisions needed to comply with the foregoing, and agree to enforce the terms and conditions applicable to the Service, Data and the Code contained in such license.

  5. USER CONDUCT.

    As a condition of use, you promise not to use the Service or the Data for any purpose that is unlawful or prohibited by these Terms of Use, or any other purpose not reasonably intended by Outbrain. By way of example, and not as a limitation, you agree not to use the Services:

    1. to abuse, harass, threaten, impersonate or intimidate other Outbrain users or Content providers;
    2. in any manner that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party;
    3. for any illegal or unauthorized purpose. You agree to comply with all local laws regarding online conduct and acceptable content;
    4. to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Outbrain user;
    5. to create or submit Spam to any other Outbrain users or any URL;
    6. to violate any laws in your jurisdiction (including but not limited to copyright laws);
    7. to submit stories or comments linking to affiliate programs, multi-level marketing schemes, sites/blogs repurposing existing stories (source hops), or off-topic content;
    8. via use of any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission;
    9. to take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our Service infrastructure;
    10. to interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;
    11. to bypass any measures we may use to prevent or restrict access to the Site;
    12. with the intention of artificially altering the Recommendations, or any other Outbrain service, including by way of creating separate user accounts for the purpose of artificially altering Outbrain’s services; artificially inflating clicks on Recommendations or Promoted Content, or participating in any other organized effort that in any way artificially alters the results of the Service.

    The following sites are strictly prohibited from using the Service and Outbrain will actively terminate the Service from sites it finds to be in violation of these prohibitions: sites displaying adult, obscene, pornographic, libelous, infringing abusive or defamatory content, sites participating in, or encouraging participation in, illegal activities, sites that promote hate and discrimination, sites that facilitate the sale of firearms or illegal drugs. In addition, Outbrain reserves the right in its sole editorial discretion to disable its Service on any site.

    Outbrain, in its sole discretion, may remove any Content from the Site for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), at any time. To report abuse to these Terms of Use, please email abuse@outbrain.com.

  6. REGISTRATION.

    You are not required to register on the Site in order to use the Service, although even if you do not register, you will be subject to these Terms of Use if you use the Service. If you register on the Site, you will have access to online reports and the Outbrain Dashboard, which allows you to control certain settings for the Service. To register, you must provide certain information. If you are a blogger, you must also provide a valid blog URL. If you are a Partner, you will be required to supply additional contact information, including, without limitation, your name, address, and valid email address and other contact information. Before you complete your registration, you will be sent a link to your email address, which you must click to validate your Outbrain account.

  7. PROMOTED CONTENT.

    By registering on the Site, you will have the opportunity to use the Outbrain Dashboard to control the settings for the Recommendation functionality, as well as other settings. If you choose to permit Promoted Content, no portion of the Promotional Revenue shall be payable to Partners without the written consent of Outbrain through a separate agreement from these Terms of Use.

  8. PROPRIETARY RIGHTS.

    All right, title and interest in and to the Site, the Service, compilations, magnetic translations, digital conversions, software and other materials related to the Service are and shall at all times remain the sole and exclusive property of Outbrain and are protected by applicable intellectual property laws and treaties. All Data related to the Site or collected by way of the Service on any website shall be the sole property of Outbrain. You acknowledge that you do not acquire any ownership rights in or to the Service or the Data.

    All rights not expressly granted to you in these Terms of Use are reserved by Outbrain.

  9. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE.

    Limited License to Use Content. If you are a Partner, by submitting any Content, you hereby grant Outbrain a limited, non-exclusive, fully paid-up, royalty free, worldwide right to use such Content and your registered and unregistered trademarks, service marks, trade dress, graphics or logos (“Partner Marks“) in any of the following: (i) on the Site, any Outbrain blog or newsletter; (ii) on any business development, commercial sales materials, or press releases; (iii) as any part of the Service; (iv) or in any other reasonable manner that a Partner might expect Outbrain to use its Partner Marks.

  10. WARRANTY DISCLAIMER.

    You acknowledge that Outbrain has no control over, and no duty to take any action regarding: which users gain access to the Service; what effects the Service may have on you, your website or equipment; the accuracy or how you may interpret, rely on, or use the Service or the Data, including without limitation any loss of reputation or loss of traffic on your website or any website of any of your affiliates; or what actions you may take as a result of having been exposed to the Service. You further acknowledge and agree that Outbrain shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, or reliance on, any Content, goods or services available on or through any third party website linked or referred to by any portion of the Service or Data. You release Outbrain from all liability with respect to the Service, and any Content or Data provided or accessed via the Service or through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Outbrain makes no representations concerning the Data or any Content contained in or accessed via the Service or the Site, including without limitation Promoted Content and Outbrain will not be responsible or liable for the contents, accuracy, copyright compliance, legality or decency of third party Content or services accessed via the Service or the Site or for your reliance on any of the foregoing. THE SERVICE, THE CODE AND THE DATA ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, PROVIDED, HOWEVER, OUTBRAIN WARRANTS THAT IT HAS ALL THE NECESSARY RIGHTS, TITLES AND INTERESTS IN THE SERVICE AND THE CODE, TO GRANT YOU THE RIGHTS AND LICENSES CONTAINED IN THESE TERMS OF USE. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT REQUIRED BY APPLICABLE LAW, OUTBRAIN AND ITS AGENTS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE, THE CODE AND THE DATA, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. OUTBRAIN DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE SERVICE, THE CODE OR THE DATA WILL BE UNINTERRUPTED OR ERROR FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

  11. LIABILITY LIMITATION.

    REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL OUTBRAIN OR ITS AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICE, AND THE DATA, EVEN IF OUTBRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE, OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $1,000. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF USE MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. OUTBRAIN DISCLAIMS ALL LIABILITY OF ANY KIND OF OUTBRAIN’S AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

    YOU UNDERSTAND AND AGREE THAT YOUR SOLE RIGHT AND REMEDY AGAINST OUTBRAIN IS TO DISCONTINUE USE OF THE SERVICE.

  12. INDEMNITY.

    You agree to indemnify, defend and hold harmless Outbrain, its parents, subsidiaries, affiliates, customers and vendors, and their respective officers, directors and employees from any liability, damage, cost or fees (including reasonable attorneys’ fees) arising from: (i) any claim or demand made by any third party due to or arising out of your access to the Site; (ii) your use of the Service, the Code, the Data and violation of the Terms of Use by you; (iii) or the infringement by you, or any third party using your Outbrain account, of any intellectual property or other right of any person or entity; provided, however, that you have not sought to remedy such infringement by using Outbrain’s copyright policy, as described in Section 19, below.

  13. TERM AND TERMINATION.

    These Terms of Use shall continue until terminated as set forth in this Section. Outbrain, in its sole discretion, may terminate or suspend user accounts at any time for any reason or for no reason at all, without prior notice or liability to you. Upon termination of your account, your right to use the Services will immediately cease. Upon termination of these Terms of Use for any reason, you shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Service, the Code and any the Data, and shall so certify, if requested, to Outbrain that such actions have occurred. If you wish to terminate your Outbrain account, you may simply discontinue using the Service. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

  14. GOVERNMENT USE.

    If you are part of an agency, department, or other entity of the United States Government (“Government“), the use, duplication, reproduction, release, modification, disclosure or transfer of the Service is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Service and the Data each are a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of such items by the Government shall be governed solely by the terms of these Terms of Use.

  15. EXPORT CONTROLS.

    You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC“), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Service in violation of any such restrictions, laws or regulations. By downloading or using the Service and the Data, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country.

  16. MISCELLANEOUS.

    These Terms of Use constitute the entire agreement between you and Outbrain pertaining to the subject matter hereof, and supersede any and all written or oral agreements with respect to such subject matter. No agency, partnership, joint venture, or employment is created as a result of these Terms of Use and you do not have any authority of any kind to bind Outbrain in any respect whatsoever. These Terms of Use, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under New York law as such law applies to agreements between New York residents entered into and to be performed within New York by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Except to the extent otherwise determined by Outbrain, any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Southern District of New York or in state court in New York County, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys’ fees. These Terms of Use may be amended only by a writing executed by Outbrain. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Outbrain to act with respect to a breach of these Terms of Use by you or others does not constitute a waiver and shall not limit Outbrain’s rights with respect to such breach or any subsequent breaches. These Terms of Use are personal to you and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving you) without Outbrain’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Outbrain expressly reserves the right to assign these Terms of Use and to delegate any of its obligations hereunder.

  17. OUTBRAIN PRIVACY POLICY.

    Outbrain’s current privacy policy is available at http://www.outbrain.com/legal/privacy, which is incorporated herein by this reference.

  18. TRADEMARKS.

    OUTBRAIN, and other Outbrain marks, graphics, logos, designs, page headers, button icons, scripts, and service names comprise registered and unregistered trademarks, service marks and trade dress of Outbrain in the U.S. and/or other countries (the “Outbrain Marks”). Other trademarks, service marks and trade names used on the Service are the property of their respective owners. Without Outbrain’s prior written authorization, you agree not to display or use in any manner the Outbrain Marks; however, a Partner may blog about its use of the Service at any time without such authorization, so long as Partner sends the blog post to Outbrain prior to or concurrent with publishing thereof.

  19. COPYRIGHT COMPLAINTS.

    We respect the intellectual property rights of others and require that those who use the Service do the same. If you believe that your proprietary work has been copied in a way that constitutes copyright infringement, please forward the following information to Outbrain’s Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. Section 512(c)(2), named below:

    1. A physical signature of the person authorized to act on behalf of the owner of the copyright;
    2. description of the copyrighted work that you claim has been infringed;
    3. A description of where the material that you claim is infringing is located on the Service;
    4. Your address, telephone number, and email address;
    5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
    6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

    Copyright Agent:

    Outbrain Inc., c/o legal counsel, 39 West 13th Street, New York, New York 10011; legal@outbrain.com

QUESTIONS OR COMMENTS.

Any questions or comments regarding, or problems with, the Service should be sent to the Website Administrator at admin@outbrain.com.

February 5, 2015

STANDARD ENGAGE TERMS

The following standard partner distribution terms (“Terms”) govern the implementation and use of the products, services, and technology made available by Outbrain to the Partner identified in a Partner Distribution Agreement.

  1. CERTAIN DEFINITIONS
    1. “Content” means graphical, textual and/or auditory content (which may include text, data, information, photos, images, graphics, audio, video or other content).
    2. “Content Recommendations” means links to Content that Outbrain determines are relevant to the viewer of a web page on which the Service is displayed.
    3. “Destination Page” means any webpage or other online location that may be accessed by clicking on Content Recommendations displayed through the Service.
    4. “Promoted Content” means Content Recommendations which generate Promotional Revenue.
    5. “Promotional Revenue” means revenue collected by Outbrain from Outbrain customers that have paid for the distribution of Promoted Content.
    6. “Partner Sites” means the properties and pages identified in the Partner Distribution Agreement, together with any additional properties on which Partner elects to implement the Service upon written approval from Outbrain (email will suffice).
    7. “Service” means the user interface provided by Outbrain that displays Content Recommendations to website users and permits users to navigate to Destination Pages by clicking on such Content Recommendations.
    8. “Technology” means the Javascript, API, SDK and associated protocols provided by Outbrain to Partner that, when implemented on a Partner Site, manage the Service and display it when appropriate.
  2. SERVICE; PLACEMENT AND APPEARANCE
    1. Partner will implement the Service directly below the main Content on each page of the Partner Sites on which the Services are installed or as otherwise mutually agreed.
    2. Partner will clearly and conspicuously identify or label the Service (including Content Recommendations and Promoted Content) in accordance with all applicable laws and regulations, including with respect to disclosing the source or nature of the Content Recommendations or Promoted Content. Without limiting the foregoing obligation, Partner agrees to comply with Outbrain’s instructions regarding how the Service, Content Recommendations, and Promoted Content are to be displayed, labeled or identified.
    3. Outbrain may make updates, modifications or improvements to the Technology or Service from time to time in its sole discretion. If Outbrain requests Partner to implement any such update, Partner will, at Partner’s election, either implement the updates in a timely manner in accordance with Outbrain’s reasonable instructions, or cease using the Service.
    4. During the Term, Outbrain shall be Partner’s sole and exclusive provider of content recommendations, where “content recommendations” are one or more links comprised of a headline or phrase indicating that an end user will be driven to content (regardless of whether the destination page displays content, advertorials or advertisements).
    5. Notwithstanding any other provision of this Agreement, Partner may not display Content Recommendations without at least one (1) link to Promoted Content on any page without Outbrain’s prior written consent.
  3. REVENUE & PAYMENT
    1. Revenue. During the Term, Partner will be paid the percentage of Adjusted Gross Revenue indicated on the Partner Distribution Agreement.
    2. Payment Terms. Within ninety (90) days of the end of the calendar month during which Outbrain collects any Promotional Revenue, Outbrain will pay to Partner its share of the Adjusted Gross Revenue as specified in this Agreement. VAT if applicable will only be paid against a valid VAT invoice. The VAT registration number for Outbrain UK Ltd is GB 115005961. If the amount owed to Partner is less than £200, then the amount owed will be accrued until the calendar month in which the balance of the payments due to Partner exceeds £200. Such payments shall be subject to withholding for income taxes and similar deductions, as required by applicable law. Any dispute regarding a payment from Outbrain must be submitted to Outbrain in writing within sixty (60) days of the date on which the amounts are available to the Partner in the Outbrain dashboard.
    3. Outbrain may withhold charge or credit back payments to Partner, if Outbrain, in its sole reasonable discretion, believes that the performance related to them are fraudulent or invalid in nature or if Outbrain was charged or credited back in their respect by the Outbrain customer. During each month, Outbrain shall provide Partner with reports that may include estimates of revenue earned by Partner, but for the avoidance of doubt, Outbrain does not guarantee that these estimated amounts so displayed during a calendar month, if any, shall be precise or definitively due to be paid to Partner as a result of this Agreement.
    4. Nothing in this Agreement shall be construed as a promise of any sort of minimum traffic volumes, clicks or usage or any other such commitments by Outbrain to Partner.
    5. No portion of the Promotional Revenue shall be payable to Partner with respect to any activity prior to the full execution of the Partner Distribution Agreement.
  4. PRIVACY
    1. Outbrain and Partner shall each maintain and display on their respective websites a privacy policy that complies with all applicable laws, and with respect to Partner, that explains how data is collected and used in connection with the Partner Sites.
    2. Outbrain’s current privacy policy is available at http://www.outbrain.com/legal/privacy.
    3. Partner shall implement the Technology and the Service in accordance with all of Outbrain’s reasonable instructions determined by Outbrain to be necessary to enable Outbrain to comply with applicable data protection laws. Partner acknowledges and agrees that it is Partner’s (and not Outbrain’s) responsibility to ensure that Partner’s use of the Technology and the Service complies with all data protection legislation applicable to Partner (including, in particular, in respect of the placing and use of third party cookies, upon which the Outbrain Services relies, and the capturing of any consent to cookies required to be obtained from the relevant end user).
    4. Partner acknowledges that users of the Service may elect to register for Outbrain and that such registration may result in collection of personally identifiable information provided by the users.
  5. LICENSE TERMS.
    1. During the Term and subject to Partner’s full compliance with all of the terms of the Agreement, Outbrain grants Partner a limited, non-exclusive, revocable, non-sublicensable, nontransferable licence to display the Service and Content Recommendations on the Partner Sites in the form and format provided through the Service, to use the Technology to display the Content Recommendations. If Partner has been granted use of the Outbrain API or SDK, Partner shall use the Outbrain API or SDK in accordance with the Outbrain applicable implementation guide made available by Outbrain from time to time, which may be revised from time to time upon notice from Outbrain.
    2. Outbrain grants Partner, during the Term, a limited, worldwide, non-exclusive, royalty-free licence to use and display Outbrain’s trademarks, service marks and logos (collectively, “Outbrain Marks”), as incorporated into the Service, strictly in accordance with Partner’s obligations and rights in this Agreement. All goodwill arising out of Partner’s use of any of the Outbrain Marks shall inure solely to the benefit of Outbrain. Outbrain shall have the right to refer to Partner and the Partner Sites in any general listing of customers or partners (including in marketing and sales materials) who have implemented the Service. Notwithstanding the foregoing, each party will request prior written consent before issuing a press release regarding this Agreement or using the other party’s name on its website other than in accordance with this Agreement.
    3. As between the parties: (a) Outbrain retains all right, title and interest in and to the Outbrain Marks, Service, Technology, Data, and Content displayed on or made available through the Service (excluding any Content from the Partner Sites which shall be owned by Partner); and (b) Partner retains all right, title and interest in and to the Partner Site(s) including the look and feel, excluding the items described in subparagraph (a) above, (including without limitation all Intellectual Property Rights in them).
    4. The licences granted under this Agreement are specifically set forth in this Agreement; there are no implied rights. All rights not expressly granted to Partner in this Agreement are reserved by Outbrain.
  6. PROHIBITED ACTIVITY.
    1. Partner will not: (i) edit, modify, truncate, filter or change the order of Content Recommendations displayed in or through the Service, except to the extent authorised by the Outbrain API or SDK implementation guides for Partners who Outbrain has authorised to use the Outbrain APIs; (ii) obscure, modify or redirect Partner Site users away from a Destination Page, or intersperse any Content between the Service and any Destination Page; (iii) minimise, remove or otherwise inhibit the full and complete display of the Service; (iv) artificially inflate clicks on Content Recommendations or Promoted Content, or encourage or require any person to click on Content Recommendations or Promoted Content using incentives or other methods that are fraudulent; (v) remove, deface, obscure, or alter any notices of Intellectual Property Rights included in the Service; (vi) access, reproduce or use the Service in any manner or for any purpose other than as expressly permitted under this Agreement; (vii) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Technology or the Service, or attempt to create a substitute or similar service or product through use of or access to Technology or the Service or related proprietary information ; (viii) attempt to interfere with or disrupt the Service or attempt to gain access to any systems or networks that connect to it other than through the Technology as implemented pursuant to this Agreement; (ix) copy, cache, distribute, display, alter, or otherwise use any Content Recommendations or Promoted Content transmitted via the Service (or authorise or assist any third party to do so) except as such Content Recommendations and Promoted Content are provided through the Service; or (x) use the Technology for any purpose not authorised by Outbrain, including with respect to the API, for any purpose that is inconsistent with the API Implementation Guide as provided to Partner.
    2. Partner will not deploy the Service on any properties that displays adult, obscene, pornographic, defamatory, libelous, infringing, abusive, or illegal Content, that promotes hate or discrimination, facilitates the sale of firearms or illegal drugs, or that participates or encourages participation in, illegal activities. Outbrain reserves the right in its sole discretion to disable the Service on any property at any time.
    3. Except as expressly and unambiguously authorised under this Agreement, Partner will not copy, rent, lease, sell, transfer, assign, sublicence, disassemble, reverse engineer or decompile (except to the limited extent expressly authorised by applicable statutory law), modify or alter any part of the Service, Technology or otherwise use the Service or Technology on behalf of or for the benefit of any third party.
  7. REGISTRATION.

    Partner is not required to register on the Outbrain website to use the Service. If Partner registers, it will have access to online reports and the Outbrain Dashboard, which allows Partner to control certain settings for the Service, including the Content Recommendation functionality. To the extent that Partner registers and has access to the Outbrain dashboard, Partner will be solely responsible for all changes for the applicable changes made through the Outbrain dashboard. Access to Outbrain dashboard shall be solely at the discretion of Outbrain and may be discontinued by Outbrain at any time.

  8. SUSPENSION OF SERVICE; TERMINATION.
    1. Outbrain may suspend or discontinue all or any aspect of the Service, including its availability, at any time if required by exigent circumstances such as a significant security breach, propagation of malware or other viruses to users, etc… provided, that Outbrain will not do so with respect to Partner unless Outbrain does so with respect to similarly situated licensees.
    2. Either party may terminate this Agreement at any time in the event of a material breach by the other party of any provision of the Agreement that remains uncured fifteen (15) days after the breaching party’s receipt of written notice of the breach.
    3. Outbrain may suspend Partner’s access to the Service or terminate the Term at any time for any improper, unlawful or otherwise fraudulent use of the Technology or Service if Partner does not cure such use within three (3) days after notice from Outbrain or if Partner does not implement updates pursuant to Section c above.
  9. LIMITED WARRANTIES; INDEMNITY
    1. Each party represents and warrants to the other that: (a) it has all right, power, and authority necessary to enter into this Agreement and perform its obligations under it; (b) it will comply with all applicable laws, regulations and orders in its performance of this Agreement.
    2. Outbrain warrants that the Technology as provided and made available by Outbrain and implemented by Partner in accordance with this Agreement do not and will not, to the best of Outbrain’s knowledge infringe any Intellectual Property Right of any third party.
    3. Partner represents and warrants that the Partner Site(s) will not contain any Content that is: (i) illegal; (ii) infringes any Intellectual Property Right of any third party; or (iii) is obscene, defamatory, libelous, slanderous material or material that violates any person’s right of publicity, privacy or personality.
    4. Except as expressly provided in this Agreement, neither party makes any representations or warranties, express or implied in relation to this Agreement, the Partner Sites, the Service, the Technology any Content made available by Outbrain through the Service or any other matters (including any implied terms relating to satisfactory quality or fitness for any purpose, any warranties of availability or uninterrupted or error free performance, any warranties arising out of any course of performance or dealing).
    5. Outbrain makes no representations concerning any Content contained in or accessed via the Service, including without limitation Promoted Content, and Outbrain will not be responsible or liable for the contents, accuracy, intellectual property infringement, legality or decency of Content provided through the Service or for Partner’s reliance on any of the foregoing.
    6. Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party and its parent and affiliates, and each of its and their respective affiliates, directors, officers, shareholders, members, authorised representatives, employees and agents (collectively, the “Indemnified Party”) from and against any and all claims, losses, liabilities, damages, costs, settlements and other expenses (including reasonable legal fees) (collectively, “Claims”) that arise out of any third party claim occasioned by any breach or alleged breach of any of the Indemnifying Party’s representations and warranties in Section 9 of this Agreement. The Indemnified Party shall promptly notify the Indemnifying Party of any Claim, provided, however, that any delay in providing such notice shall not relieve the Indemnifying Party of any of its obligations except to the extent that the Indemnifying Party is actually prejudiced by such delay. The Indemnifying Party shall have the right to control the defense and settlement of any indemnified Claim, provided that the Indemnitfying Party has no right to compromise or settle any Claim in a manner which affects the other’s rights, makes admissions on the other party’s behalf or obligates the other party to take or not take any action, including, without limitation, the payment of money, without such party’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed.
  10. LIMITATION OF LIABILITY
    1. Neither Outbrain nor the Partner exclude or limit liability to the other for: (i) death or personal injury caused by its negligence or that of its employees or contractors; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability which cannot lawfully be excluded or limited.
    2. Subject always to Section 10 a., neither party will be liable for: (a) any special, indirect, incidental or consequential loss or damage; (b) any loss of goodwill or reputation; (c) any loss of data; (d) any loss of contracts, business or anticipated savings; or (e) any loss of profits arising out of or in connection with this Agreement or any breach of this Agreement, whether or not such party has been advised of the possibility of such loss or damage, howsoever incurred and whether under a theory of contract, tort (including negligence) statutory duty.
    3. Subject always to Section 10 a. and except for liabilities arising out of any violation, misappropriation or infringement of a party’s Intellectual Property Rights, in no event will either party’s aggregate liability arising out of or in connection with this Agreement or any breach of this Agreement (whether under a theory of contract, tort (including negligence), statutory duty, or otherwise) exceed the greater of: (i) £100,000 GBP; and (ii) 125% of the amount of Promotional Revenue paid or payable to the Partner in the 12-month period immediately preceding the event giving rise to liability (or, in the case of a series of connected events, the first such event).
    4. Each party acknowledges to each other that it accepts that the restrictions on the liability of each other party, as set out in this Agreement are reasonable in all the circumstances.
  11. EXPORT CONTROLS.

    Partner will comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and shall not export, or allow the export or re-export of the Service in violation of any such restrictions, laws or regulations. By downloading or using the Service, Partner agrees to the foregoing and represent and warrants that it is not located in, under the control of, or a national or resident of any restricted country. Partner represents and warrants that none of it, or any individual, entity, or organization holding any ownership interest or controlling interest in Partner, including any officer or director, is an individual, entity, organization with whom any United States law, regulation, or executive order prohibits U.S. companies and individuals from dealing, including, names appearing on the Specially Designated Nationals List.

  12. MISCELLANEOUS

    This Agreement shall be interpreted and construed in accordance with and governed by the laws of England and Wales, without regard to conflict of law provisions and both Parties agree to submit to the exclusive jurisdiction of the English courts. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and reasonable legal fees. The parties are independent contractors, and nothing in this Agreement will be construed to create a partnership, joint venture, agency or other relationship between the parties. No failure or forbearance by a party to enforce any of its rights under this Agreement or insist upon performance of the other party’s obligations under this Agreement will be deemed a waiver of such rights or obligations to any extent, and no waiver by either party of any default or breach of the Agreement will constitute a waiver of any other or subsequent default or breach. Except with respect to payment obligations, neither party will be liable for any failure to perform due to causes beyond the party’s reasonable control. This Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning such subject matter. This Agreement may be amended, modified or superseded, only by a written instrument signed by both parties. The headings in the Agreement are for the convenience of reference only and have no legal effect. All provisions of the Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers and limitations of liability. If any provision of the Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement may not be assigned or transferred by Partner for any reason whatsoever (including, without limitation, by operation of law, merger, reorganisation, or as a result of an acquisition or change of control) without Outbrain’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Outbrain expressly reserves the right to assign the Agreement and to delegate any of its obligations under it.

February 5, 2015