FUNCAPTCHA PUBLISHER AGREEMENT TERMS AND CONDITIONS
By clicking “I AGREE” to access or use the Service which is owned by FunCaptcha Pty Ltd (“FunCaptcha”), or by using the Service, you (“the Publisher” and “you”) agree to be bound by these Terms and Conditions (“Agreement”).
If you, the Publisher do not agree to this Agreement, you may not access or use the Service.
Capitalized terms used in this Agreement are defined at clause 20.
1. License Grant / Restrictions on Use/Technical Obligations
FunCaptcha grants the Publisher a limited, non-exclusive, revocable, non-transferable (excluding the right to grant sublicenses), license for the Term to access and use the Service, in accordance with the applicable Program and the terms and conditions of this Agreement. The Publisher agrees to install and incorporate the technology, including any updates, fixes or patches provided by FunCaptcha from time to time, on the Publisher’s Websites and to maintain throughout the Term, all software codes and as reasonably necessary for FunCaptcha to provide the Service and, to the extent applicable, the Advertisements.
The Publisher acknowledges, and agrees, that the rights granted to it under the License are expressly limited to the rights stated above. To the fullest extent permitted by law, all implied rights in relation to the License are excluded.
1.2 Restrictions on Use/Technical Obligations
As a fundamental condition of the License, the Publisher agrees that New IP does not (in so far as it relates to the actual grant of license in clause 1.1), form part of the License, unless FunCaptcha agrees in writing to such New IP being included in the License. Except as provided by clause 1.1, it is acknowledged (a) that the prior consent of FunCaptcha is required for the Publisher to sub-license any right or obligations under this Agreement; and (b) that ownership of the Intellectual Property Rights in the FunCaptcha Technology (including the Service) is not altered by this Agreement and remains with FunCaptcha.
Publisher agrees: (a) not to alter, modify or otherwise interfere with the operation of the Service or any Advertisements or link contained within any click-thru Advertisement; (b) not to manipulate technology or use any mechanical or other means to artificially inflate impressions, engagements or click-thru traffic counts and shall not authorise or encourage others to do so; (c) not to click their own advertisements or use any means to inflate impressions or clicks artificially, including the use of any manual methods; (d) not to ask any Personnel or any third party to click on their own advertisements or use deceptive implementation methods to obtain clicks, this includes, but is not limited to, offering compensation to End Users for viewing advertisements or performing searches, promising to raise money for third parties for such behaviour or placing images next to individual advertisements; (e) not to authorise or encourage any third party to generate fraudulent impressions of or fraudulent clicks on (or fraudulent completions of puzzles, or the like, with respect to) any Service, including but not limited to, through repeated manual clicks, the use of robots or other automated query tools or computer generated search requests or the fraudulent use of other search engine optimization services or software, (f) to promptly notify FunCaptcha if the Publisher suspects that any third party may be tampering with, abusing or manipulating the technology or the advertising on the Publisher’s Website; and (g) that it is solely and exclusively responsible for the Publisher’s Website and the Publisher’s Content; and (h) that FunCaptcha has no responsibility to review or approve any Publisher’s Content.
The Publisher will not unless otherwise expressly authorised in writing by FunCaptcha: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocol of the Service, the Website or any FunCaptcha’ Intellectual Property Rights; (b) modify, adapt or translate the Service or the Website; (c) make copies of the Service, the Website, or FunCaptcha Data; (d) resell, distribute or sublicense the Service, the Website or FunCaptcha Data; (e) make the Service or the Website available on a “service bureau” basis, or otherwise allow any third party to use or access the Service, the Website or FunCaptcha Data; (f) remove or modify any proprietary marking or restrictive legends placed on the Services or the Website; (g) use, or permit, the Service or the Website to be accessed or used in any way other than in a manner expressly permitted by this Agreement or in violation of any applicable law or regulation; (h) introduce into the Service or the Website any software, virus, worm, “back door”, Trojan horse or similar harmful code; (i) challenge the validity of any Intellectual Property Rights of FunCaptcha; (j) merge or interface any third party software (including source code or open source software) with the Service or the Website; communicate directly with any third party provider or advertiser regarding the Publisher’s use of the Service; (k) proxy, modify, obscure, hire or circumvent the identity, location or other identifiable information about an End User; (l) initiate any communication of any kind that encourages, solicits, induces, diverts, entices, or otherwise diminishes FunCaptcha’ business or relationship with any advertiser, third party provider or publisher; or (m) permit the Service to be accessed in any unauthorised way, including via interfaces (including exposing or “passing through” a software API or otherwise making the Service accessible as an Application Program Interface (API), do or permit any other act which infringes FunCaptcha’ Intellectual Property Rights.
2. FunCaptcha’ Obligations
FunCaptcha agrees to operate, host and make available the Service, provide the Service to the Publisher and its End Users, in accordance with the following Programs: (a) Free Program; (b) Plus Program; or (c) Partner Program.
If applicable, collect all advertising revenues where advertising is sold by FunCaptcha or its advertising sale partners through the Service on the Publisher’s Website. The parties agree that the availability, performance and provision of the Service shall be subject to the occurrence of any Excluded Events.
3. The Programs
3.1 Plus Program
If, the Publisher does not wish to receive Advertisements as part of the Service, the Publisher can elect to join the Plus Program. The Publisher agrees that as a condition of the Plus Program that the Publisher may be requested to pay FunCaptcha the No-Ads Fee, to be negotiated between the parties at the time of electing to join the Plus Program.
Where agreed to by both parties, FunCaptcha shall Invoice the Publisher the No-Ads Fee on a monthly basis; the Publisher agrees to pay the Invoice within seven (7) days of the date of the Invoice.
3.2 Free Program
The Free Program may include Advertisements as part of the Service. Any advertising revenue which is earned by FunCaptcha during the period the Free Program operates on any Publisher’s Website shall belong solely to FunCaptcha and any of its Third Party Providers (as determined by FunCaptcha). Fair usage applies.
3.3 Partner Program
If the Publisher elects to participate in the Partner Program, the Publisher agrees that Advertisements will be sold by FunCaptcha and its Third Party Providers as part of the Service. The Publisher is required to notify FunCaptcha that it wishes to join the Partner Program. If accepted into the program by FunCaptcha at their sole discretion, a Share of the advertising revenue will be received by the Publisher thirty (30) days after the month in which FunCaptcha receives the advertising revenue.
4. Subscription Plans
4.1.1 Trial Period
For the purposes of clause 4.0, the ‘Trial Period’ refers to within the first thirty (30) calendar days of the applicable Service, or, requesting less than 50,000 Sessions, under clause 4.0 being purchased by you for the first time, and being from the date that the Service was provisioned with reference to the Publisher Account creation date.
You expressly and irrevocably agree that:
a. It is your responsibility to ensure that the Service is utilized to its full potential;
b. It is your responsibility to ensure the appropriateness and compatibility of the Service that you are purchasing;
c. You have ensured that Service that you are purchasing is appropriate and compatible to your needs prior to making the purchase;
d. We are not obliged to provide refunds or account credit for any Service that is functional, as described, or of acceptable quality for the purpose which it is provided by us if your request for a cancellation of the Service has not been received by us within the ‘Trial Period’. We reserve the right, subject to these terms and at our absolute discretion, to offer you;
i. An account credit; or
ii. A refund
in circumstances where a cancellation request has been received by us outside of the ‘Trial Period’.
e. We may offer account credit to be applied to your account as a gesture of goodwill. Account credits can only be redeemed via purchase of any Service(s) available at our website, and cannot be refunded or redeemed as cash credits under any circumstances. You expressly acknowledge that upon accepting, using, or otherwise receiving an account credit in your account, any entitlement you may have to cash credits in respect of your purchase under the ‘Trial Period’ is waived and ceases with immediate effect.
f. We may choose, on your request, to downgrade an account, however no refund or account credit will be applied if:
i. We have determined that the Service provided is functional, as described, or of acceptable quality for the purpose for which it is provided; or
ii. You have made your request outside of the ‘Trial Period’.
g. You are liable to pay any administrative costs incurred by us as a result of refunding any Service outside of the ‘Trial Period’;
h. Payments for the Service, such as those made through PayPal® or via Credit Card, will either be returned via transaction reversal minus surcharge or via full account credit;
i. Your request for refund will be denied where we:
i. Determine that you have not claimed your refund in strict compliance with clause 4.3.3;
ii. Determine that Service on the claim has been used illegally or outside the terms of service;
iii. Believe you have breached your agreement with the terms of this Agreement in any way;
iv. Have sent communication to you, and we do not receive a response to our communication within one week (7 days) of us transmitting such communication to you; or
v. Believe the request is fraudulent.
j. We take no responsibility for any mistakes in application either on the advice of our staff or your sole decision; and
k. You are liable for the costs we incur (including legal costs on a full indemnity basis) if you make any claim in connection with or arising from the Service, and you have breached your agreement with clause 4.1 of these Terms in any way whatsoever at any time after indicating your agreement to these Terms.
4.1.3 Process of claiming a refund
In order to claim a refund or account credit, you undertake to clearly, via email to us:
a. request a cancellation of your Service; and
b. request a refund or account credit (and provide reasons for the request).
In order to receive a refund, we must receive your email within the ‘Trial Period’. You understand that it is your responsibility to ensure that we have received your email within this timeframe.
Generally, a response will be sent to you within one week (7 days) of us receiving your request, but we may convey a response earlier. You also understand that your eligibility for any refund or account credit is subject to your compliance with, and subject to in any case the entirety of the terms of this Agreement.
Account credits cannot be refunded or redeemed as cash credits under any circumstances. Account credits, whether purchased by you or provided to you as a gesture of goodwill, can only be redeemed via purchase of any Service(s) available on our website.
5. Right of Access to Publisher’s Web Site, General Obligations & Inventory Guarantee
5.1 Publisher’s Account
In order to access and use the Services, the Publisher is required to create a Publisher’s Account. During the registration process of the Publisher’s Account, the Publisher must: (a) create a unique Sign-In Name and Password in order to access the Publisher’s Account on subsequent visits; (b) elect the Named Users; (c) elect the Publisher’s Websites that are to receive the Service; and (d) provide true, accurate, current and complete information in relation to the foregoing.
The Publisher is solely responsible for the (a) use, misuse or any communications through a Publisher’s Account; (b) confidentiality and use of the Sign-In Name and Passwords; (c) confidentiality and use of the Publisher’s Account, including the use of the Publisher’s Account by any Named Users, Personnel or other third parties who have accessed the Publisher’s Account.
The Publisher agrees to promptly notify FunCaptcha if any Sign-In Name or Password needs to be deactivated. FunCaptcha is not responsible and will not be liable for any Loss caused by any unauthorised use of the Publisher’s Account.
5.2 Right of Access by FunCaptcha
5.3 General obligations
The Publisher will (in the manner permitted by the License) provide FunCaptcha with all information and co-operation reasonably necessary to enable FunCaptcha to perform its obligations under this Agreement, ensure that any Publisher identification details used to access the Publisher Account and the Service are not disclosed or transferred to any other person and are to be kept secure. The Publisher will take reasonable steps to (a) ensure that any Named Users are suitably trained on how to use the Service; (b) employ and implement the correct use and application of the Service in accordance with any manuals, documentation or instructions supplied by FunCaptcha; (c) comply with any other reasonable directions of FunCaptcha in relation to the use of the Service; and (d) comply with all of FunCaptcha’ reasonable directions in relation to the use of the Service.
The Publisher will not: (a) utilise or distribute the FunCaptcha Technology outside the scope of this Agreement, including without limitation sublicensing or granting of rights to third parties; or (b) create additional products or services which derive from any FunCaptcha Technology.
6. End User Information, Consumer Privacy and FunCaptcha Data
The Publisher agrees that as a result of accessing and using the Service, FunCaptcha will receive End User Information via the Service on the Publisher’s Website(s). Once the End User Information is received by FunCaptcha, it becomes FunCaptcha Data. FunCaptcha Data will be used by FunCaptcha and its Third Party Providers in the provision of the Service to the Publisher. FunCaptcha Data is owned by FunCaptcha and will not be returned to the Publisher on termination or expiration of this Agreement. In most instances, the End User Information will not contain Personal Information. However, in those instances where the End User provides Personally Identifiable Information, the Publisher agrees to inform the End User that FunCaptcha and its Third Party Providers will receive the Personally Identifiable Information.
In the event the Publisher participates in the Partner Program FunCaptcha will pay the Share to the Publisher within 30 days after the end of the month in which the relevant advertising revenue was received by FunCaptcha. Each parties Share shall be determined by FunCaptcha (at its sole discretion). If the Share owed to the Publisher in any given month is less than $200, the payment of the Share will be deferred until the following month, subject to such total accumulated amount being $200 or more. Both parties agree to comply with the law of the country in which it operates in relation to the payment of any taxes to the appropriate taxation authorities, as applicable. The method of payment of the Share to the Publisher shall be agreed between the parties. The Publisher is responsible for the payment of any fees charged by the payment service for the transfer of the payment of the Share to the Publisher. FunCaptcha shall deduct this fee from the Share. If the Publisher fails to provide FunCaptcha with appropriate payment information, including any jurisdictionally required information within 30 days of commencement of Term, payments will be forfeited until such time as information is received and confirmed accurate, at which point the payment Term will commence. In the event the Publisher participates in the Plus Program, the Publisher will pay the No-Ad Fee to FunCaptcha within seven (7) days of receiving an Invoice from FunCaptcha. Such payment shall be made to FunCaptcha via the method detailed in the Invoice. If the Publisher fails to pay an Invoice within the time period referred to above, FunCaptcha may do any one or more of the following: (a) charge interest on the amount owing at 18% per annum; (b) restrict or suspend the Services in accordance with clause 13 below; (c) terminate this Agreement, in accordance with its terms; or (d) convert the Service to the Free Program.
The Publisher acknowledges and agrees that in the event the Publisher has elected to participate in the Partner Program and there has been the misuse or abuse of technology or advertising by the Publisher, its Personnel or any third party on behalf of the Publisher, the Publisher shall not be entitled to any payment associated with the applicable Advertisements, that FunCaptcha shall, in its sole discretion, regularly review impressions, engagements, click-throughs or other actions with respect to the Advertisements and that no payment will become due to the Publisher for any acts or omissions that FunCaptcha determines, in its sole discretion, are fraudulent or improper.
7.2 Unclaimed Earnings
In the event where the Publisher’s Website(s) receives no activity pertaining to revenue or earnings for a period of more than 180 days, the Publisher agrees to wholly forfeit the following: (a) Estimated Revenue; (b) Earnings; and (c) Payable Earnings without prior notice.
7.3 Tax Information
The Publisher is responsible for the payment of any jurisdictionally required taxes pertaining to revenue or earnings from the Service. If FunCaptcha is required by Law to pay these taxes on behalf of the Publisher, both parties agree that the amount shall be deducted from the Share.
The Publisher grants FunCaptcha a non-exclusive, worldwide, non-transferrable, royalty-free license to use the Publisher’s Trade Marks on the Website, promotional materials and marketing collateral in connection with the Service. FunCaptcha acknowledges and agrees that the rights granted to it under this clause are license rights only and nothing contained in this Agreement constitutes or shall be construed to be an assignment of any or all of the Publisher’s rights with respect to the Publisher’s Trade Marks.
9. Term and Termination
The term of this Agreement commences on the Commencement Date and continues until otherwise terminated earlier in accordance with this Agreement (Term).
9.2 Termination for cause
Either party (First Party) may terminate this Agreement immediately by written notice upon the occurrence of one of the following events: (a) if FunCaptcha is required by Law to do so; (b) if the other party is in breach of this Agreement and that other party has failed to remedy the breach within fifteen (15) days of a written notice to it from the First Party, specifying the breach and requiring it to be remedied; or (c) if the other party is in breach of this Agreement and that breach is not capable of remedy, as reasonably determined by the First Party.
9.3 Termination by FunCaptcha
FunCaptcha may terminate this Agreement: (a) immediately, if FunCaptcha reasonably determines that the Publisher has in any way manipulated or used artificial means to increase or decrease impressions, engagements, click-throughs, reporting of impressions, engagements, and click-throughs, or other actions, or has encouraged or authorized others to do so; or (b) on giving the Publisher three (3) days’ written notice, without cause.
Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.
9.4 Consequences of termination or expiration
Upon termination or expiration of this Agreement: (a)the License terminates; the Publisher must pay any outstanding monies owed to FunCaptcha; (b) the Service will no longer be provided to the Publisher; and (c) the Publisher must immediately return or (if requested to do so by FunCaptcha) destroy all Materials belonging to FunCaptcha in the Publisher’s possession or control.
10.1 Mutual Warranties
Both parties warrant and represent that (a) it has the full right, power and authority to enter into this Agreement and to discharge its obligations; (b) it has the right to grant the licenses under this Agreement; and (c) it shall comply with all applicable Laws in the conduct of its business and in the performance of its obligations under this Agreement.
10.2 Additional Publisher’s Warranties
The Publisher warrants and represents to FunCaptcha that: (a) the Publisher is the owner of each Publisher Website or is legally authorised to act on behalf of the owner of each Publisher Website for the purposes of this Agreement; (b) it will comply with Privacy Laws and will ensure that any Personally Identifiable Information that is collected via the Service is collected lawfully; (c) the Publisher is the owner of the Publisher Content on each Publisher Website and has the right to place the Service on each Publisher Website; and (d) the Publisher has the right to permit FunCaptcha and its Third Party Providers to collect and use End User Information.
10.3 Additional FunCaptcha Warranties
FunCaptcha acknowledges that certain Advertisers may not want their Advertisements placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within other categories per the IAB’s Editorial Adjacencies Guidelines. FunCaptcha will use commercially reasonable efforts to comply with these guidelines and may from time to time review Publishers content within the context of same.
The Publisher indemnifies, and will keep indemnified, FunCaptcha against (a) any Claims against FunCaptcha; or (b) loss suffered by FunCaptcha, arising from the negligent acts or omissions of the Publisher, its Personnel (or anyone who accesses the Publisher’s Account on behalf of the Publisher); (c) any Claim or loss that any (or a combination of) the following infringes a third party’s Intellectual Property Rights, Publisher Data, End User Information, Publisher Technology, or the Service; (d) any Claim or loss that any (or a combination of) the following causes FunCaptcha to contravene any Privacy Laws, Publisher Data, End User Information, Publisher Technology, or the Service; (e) fraud or any contravention of Law by the Publisher, its Personnel (or anyone who accesses the Publisher’s Account on behalf of the Publisher); or (f) any breach of this Agreement by the Publisher, its Personnel (or anyone who accesses the Publisher’s on behalf of the Publisher).
Subject to clause 14.3(b), FunCaptcha indemnifies, and will keep indemnified, the Publisher against any Claims (on final judgment) against the Publisher; or loss (excluding Consequential Loss) suffered by the Publisher, arising from the grossly negligent acts or omissions of FunCaptcha or fraud or any contravention of law by FunCaptcha.
12. Intellectual Property Rights
12.1 Ownership – FunCaptcha Technology
Ownership of the FunCaptcha Technology is not modified by this Agreement. The Intellectual Property Rights in the FunCaptcha Technology (including but not limited to the Service, the Website and any FunCaptcha Data) remains vested in FunCaptcha.
12.2 Ownership – Publisher Technology
The Publisher grants FunCaptcha a non-exclusive, non-transferable, worldwide, royalty free license to use the Publisher Technology and, to the extent applicable, the End User Information for the purposes of providing the Service to the Publisher and its End Users. Neither party will have any rights with respect to the other parties Intellectual Property Rights.
12.3 Notification of infringement claim
The Publisher must notify FunCaptcha promptly from the date it become aware of any actual or suspected infringement by a third party of FunCaptcha’ Intellectual Property Rights or any actual or threatened claim by a third party that FunCaptcha’ Intellectual Property Rights have or will be infringed by any act, omission or permission by a party in connection with this Agreement.
This clause 12 survives the termination or expiration of this Agreement.
FunCaptcha may temporarily suspend (in part or in whole) the provision of the Publisher Account or the Service to the Publisher if: FunCaptcha is required by Law to do so; such suspension is in accordance with clause 7 (late payment of Invoices); an event of Exceptional Circumstance occurs, which affects or may affect FunCaptcha’ ability to provide the Service; or if the Publisher is in breach of the Agreement.
14.1 Exclusion of liability
To the extent permitted by Law, in no event will FunCaptcha be liable to the Publisher for Consequential Loss. The Publisher agrees FunCaptcha is not liable to any third party for any acts or omissions regarding, arising out of, or in connection with, this Agreement.
14.2 Implied terms
To the full extent permitted by Law, any term which would otherwise be implied into this Agreement is excluded. To the full extent permitted by Law, the Publisher acknowledges that the Service (and anything else provided under the License) is licensed by FunCaptcha on an ‘as is, where is’ basis and FunCaptcha makes no warranties or representations as the Service (and anything else provided under the License), the Website, FunCaptcha Data or otherwise in connection with this Agreement. In the event any Law implies or imposes terms into this deed which cannot be lawfully excluded, such terms will apply, save that the liability of FunCaptcha for breach of any such term will be limited in accordance with clause 14.3(a) and 14.3(b).
14.3 Limitation of liability
To the extent FunCaptcha is found Liable in connection with this Agreement, its Liability shall be limited (at the option of FunCaptcha) to any one or more of the following: (1) re-supplying services to which the Liability relates or the supply of equivalent services; or (2) reimbursing the Publisher (subject to clause 14.3(b)) for paying someone else to supply the services which the Liability relates.
(b) Liability cap
To the extent that FunCaptcha is Liable under this Agreement, then FunCaptcha’ cumulative Liability (whether in contract, tort, indemnity or statute) in the aggregate (to the fullest extent permitted by law) shall in no event exceed, where the Publisher is (1) participating in the Free Program, the sum of $10 (ten dollars); (2) participating in the Plus Program, the sum of the No-Ad Fee paid by the Publisher in the three (3) months prior to the date on which the cause of action arose; or (3) participating in the Partner Program, the sum of the Share received by the Publisher from FunCaptcha in the three (3) months prior to the date on which the cause of action arose.
15. Privacy law
The Publisher agrees to comply with the applicable Privacy Laws in relation to any and all Personal Information that it collects from: (a) its End Users, including but not limited to the End User Information; (b) FunCaptcha; (c) any Third Party Providers; or (d) which is collects from using the Service, in connection with the Agreement.
16. Confidential Information
16.1 Confidential Information
Neither party will, without the prior written approval of the other party, disclose the other party’s Confidential Information. Each party must take all reasonable steps to ensure that its Personnel and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information. Neither party will be in breach of this clause 16 in circumstances where it is legally compelled to disclose the other party’s Confidential Information. Notwithstanding any other provision of this clause 16, each party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its solicitors, auditors, insurers and accountants.
Each party must, on demand, return to the other party any Confidential Information supplied by the first party in connection with this Agreement. Each party agrees that confidentiality obligations under this clause 16 shall continue for a period of five years from the termination or expiration of this Agreement.
16.2 Confidential Earnings Information
The Publisher agrees not to disclose Confidential Earnings Information regarding your FunCaptcha account without our prior written consent. “Confidential Earnings Information” includes: (a) revenue per mille (RPM), click-through rate (CTR), estimated earnings or other statistics relating to site performance as pertaining to revenue; (b) adjustments made to earnings or payments resulting from invalid activity; and (c) any payment made by FunCaptcha resulting from your use of the service.
A notice or other communication connection with this agreement (Notice) has no legal effect unless it is in writing. In addition to any other method of service provided by law, the Notice may be sent by electronic mail and is deemed delivered when the sender’s computer reports that the message has been delivered to the electronic mail address of the addressee.
18. Governing law and jurisdiction
18.1 Governing law
This Agreement is governed by and construed in accordance with the laws of Queensland, Australia.
Each party irrevocably: (a) submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating to this Agreement; and (b) waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue falls within paragraph 18.2(a).
19.1 No assignment
The Publisher must not assign, transfer or novate all or any part of its rights or obligations under or relating to this Agreement or grant, declare, create or dispose of any right or interest in it, without the prior written consent of FunCaptcha.
If a provision of this Agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.
19.4 Whole agreement
This Agreement (a) is the entire agreement and understanding between the parties relating to the subject matter of this Agreement; and (b) supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.
In this Agreement:
“Plus Program” has the meaning given to it in clause 3.1.
“Advertisement” means the advertising which shall appear as part of the Service, typically, but not limited to, text banner ads, images, video or flash content displayed within the FunCaptcha placement.
“Partner Program” has the meaning given to it in accordance with clause 3.
“Commencement Date” means the date the Publisher creates the Publisher Accounts.
“Confidential Information” means all information relating to or comprised in: (a) this Agreement and the amount of the fees payable under this Agreement; (b) reports, plans, specifications, project documents, operational information and technical information produced or provided in connection with this Agreement (including those concerning or related to the Service); (c) the modules, components, APIs and business processes embodied in the Service; (d) know-how, trade secrets and ideas; (e) strategic, financial and accounting information, including information in relation to particular business opportunities; (f) other information, which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential; and (g) any information derived from or Materials embodying the foregoing information, whether such information was: (a) disclosed orally, in writing or in electronic or machine readable form; or (b) disclosed as a result of discussions between the parties concerning or arising out of this Agreement, but excluding any such information: (a) which is publicly known; (b) which is disclosed without restriction by a third party and without any breach of confidentiality by that third party; or (c) which is developed independently by a party without reliance on any of the disclosing party’s confidential information.
“Consequential Loss” means any of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of data; loss of business opportunity; loss of use or amenity, or loss of anticipated savings; special, exemplary or punitive damages; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into this Agreement, including any of the above types of loss arising from an interruption to a business or activity.
“Cookies” means a FunCaptcha or a Third Party Provider’s alphanumeric identifier assigned to and stored on an End User’s computer when such computer communicates with the Service’s server. The Cookies are recorded by the server to enable the collection of Personally Identifiable Information (PII) and Non-Personally Identifiable Information (Non-PII).
“End User” means the individuals who use the Service on any of the Publisher’s Websites.
“End User Information” means the information supplied by the End User when they use the Service on the Publisher’s website(s) and may include, without limitation, gender, age, postcode/zip code, geo-location, device or browser identifiers (e.g. Cookies and IP addresses) and any other demographic information. End User Information may or may not include Personally Identifiable Information (PII), but will always consist of Non-Personally Identifiable Information (Non-PII).
“Exceptional Circumstance” means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under the Agreement. Such circumstances include, but are not limited to, the following: adverse changes in government regulations; any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster; acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber attacks, viruses or malware, data loss as a result of the actions of a third party; strikes or industrial disputes; materials or labour shortage; acts or omissions of any third party network providers; or the acts or omissions by the third party service provider who has contracted directly with the Publisher or the employer of the Publisher for the provision of services which includes access to and use of the Service.
“Excluded Event” includes but is not limited to the following: Scheduled Maintenance; performance issues relating to updates, upgrades and (if applicable) revisions to third party software; events of Exceptional Circumstances; and faults, service outages or disruptions caused by third party equipment, software or networks.
“Fault” means an interruption or degradation in the Service or any other error or fault which inhibits the normal operation of the Service, excluding any Excluded Events.
“FunCaptcha” means the verification security software which forms part of the Service.
“Intellectual Property Rights” means all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trademarks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
“License” means the limited license granted by FunCaptcha to the Customer, as set out in clause 1.1.
“Loss” means any loss (including Consequential Loss), diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.
“Material” means property, information, software, firmware, documented methodology or process, documentation or other material in whatever form, including any reports, specifications, business rules or requirements, Publisher manuals, Publisher guides, operations manuals, training materials and instructions, and the subject matter of any category of Intellectual Property Rights.
“Named Users” means any Personnel of the Publisher that is designated by the Publisher as having the right to access to the Publisher’s Account and to use the Service, on behalf of the Publisher.
“New IP” means any Intellectual Property Rights which are created after the Commencement Date, in the course of this Agreement; or created, discovered or coming into existence as a result of utilising rights or carrying out tasks or obligations in connection with this Agreement (including the rights under the License), which concerns, or relates to, the Service, the FunCaptcha Data, the FunCaptcha Technology or FunCaptcha’ Materials.
“No-Ads Fee” means the fee payable by the Publisher to participate in the Plus Program, in accordance with clause 3.2.
“Non-Personally Identifiable Information” and “Non-PII” means information that cannot by itself be used to identify a specific individual and includes, for the purposes of this Agreement, (but is not limited to) information received from the web browser, operating system, or device, including such things as information about the browser, IP address and browser settings, information about the operating system or device, the unique identifier assigned to a device, the web address of a web page visited, the name or type of mobile app, the time and date a web page or app was visited, the address of the referring web page, and other information about a web page or app. It could also include the number of times a particular browser or device has been shown a particular ad, or it may include generic categories about users and their interests (for example, “female mobile buyer”).
“Personnel” means in relation to a party, any related body corporate, related entity, employee, officer, agent, contractor, or professional adviser of that party.
“Personally Identifiable Information” and “PII” means information that by itself can be used to identify, or may reasonably identify, a specific individual and includes, for the purposes of this Agreement, (but is not limited to) such things as name, address, phone number, and email address.
“Program” means either the Free Program, Plus Program or Partner Program.
“Publisher” means the individual, business or organisation which has been given access to and use of the Service via the Publisher Account and has entered into this Agreement.
“Publisher Account” means the account created in connection with the Publisher, using the Sign-In Name and Password details (as either provided by FunCaptcha or created by the Publisher) and which contains, without limitation, the Publisher Data input by the Publisher, along with the contact details for the Publisher, which can also be accessed by each Named User nominated by the Publisher.
“Publisher’s Content” means all materials displayed or performed on or accessible through the Publisher Websites, including, but not limited to text, graphics, articles, photographs, images, illustrations, audio clips, video clips, but excluding the Advertisements.
“Publisher Data” means the data relating to the Publisher which is provided by the Publisher, or to the extent applicable, by any Named Users, to FunCaptcha.
“Publisher Technology” means the Intellectual Property Rights of the Publisher which are created independently of this Agreement.
“Publisher’s Website(s)” are the websites owned or operated by the Publisher which the Publisher has designated during the registration process as being able to receive and display the Advertisements served by the Service.
“Privacy Law” means the applicable legislation and regulations concerning the protection of privacy and Personally Identifiable Information in the country in which the Publisher operates, as applicable.
“Session” means each new request made to the FunCaptcha API by the Publisher, or by an end-user of the Service through the Publisher’s Website(s).
“Service” means the FunCaptcha verification service, which may include Advertisements, that is provided to the Publisher in accordance with one of the Programs, and shall include the software that generates the FunCaptcha and provides access to the website portal (as hosted by FunCaptcha) and any other code incorporated in the binary build for the Service, as may be provided by FunCaptcha via the Website.
“Scheduled Maintenance” means preventative or emergency maintenance in relation to any software used, or relied upon, to provide the Service. “Share” means the share of the advertising revenue which is allocated to the Publisher, the amount of which is determined in the sole discretion of FunCaptcha.
“Sign-In Name” is the unique name chosen by the Publisher as part of the registration process.
“Subscription Plan” means the provision of the Service under the pay-to-use terms set out in clause 3.1, for which the Publisher pays FunCaptcha an agreed fee on a monthly or annual basis.
“Free Program” has the meaning given to it in accordance with clause 3.2.
“FunCaptcha Data” means the information and data received from the Publisher and its End Users including but not limited to the End User Information.
“FunCaptcha Technology” means all Intellectual Property Rights created, owned or licensed by FunCaptcha including the Service and the algorithms and software used by (or comprised in) the Service, and any products which may be developed from the Service.
“Term” has the meaning given to it in clause 9.1.
“Third Party Providers” means those third parties who assist FunCaptcha in providing the Service, including but not limited to any advertisers who advertise on the Service.
“Website” means one or more of the websites located at funcaptcha.co, funcaptcha.com, funcaptcha.net, and FunCaptcha.co