1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement, unless the context requires otherwise:

“Affiliate” means an entity controlled by another entity within the meaning of article L. 233-3 of the French Commercial Code.

“Agreement” means, collectively, the provisions of these “Publishers General Terms and Conditions” and the details contained into the Publisher Interface.

“Applicable Laws” means all applicable laws, standards, regulations and codes of practice.

"Business Day" means any day other than a Saturday, Sunday or a public holiday in France.

“Confidential Information” has the meaning given in clause 11 (Confidentiality).

“Effective Date” means the date upon which all of the parties have signed this Agreement.

“Force Majeure Event” means an event that is beyond the reasonable control of a party.

“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

“Gross Revenue” means the amounts received by a Kelkoo Related Party from Merchants resulting solely from Qualified Clicks on relevant Kelkoo Listings after deducting any taxes that Kelkoo is required to pay or collect in relation to the supply of services (for example VAT and any amount to gross-up any sum of withholding tax); any credit card processing fees, bad debt and charge-backs; commissions or discounts allowed or paid to advertising agencies; refunds to Merchants, incurred by or on behalf of a Kelkoo Related Party as determined by Kelkoo in its absolute discretion; API costs; and any other reasonable costs of implementing and maintaining this Agreement.

“Insolvency Event” means a party:

has a winding-up petition presented against it;
enters into liquidation whether compulsory or voluntary (except for the purposes of bona fide reconstruction or amalgamation);
compounds with or makes any arrangement with its creditors;
makes a general assignment for the benefit of its creditors;
has a receiver, manager, administrative receiver or administrator appointed over the whole or substantially the whole of its undertaking or assets;
has an administration petition presented or administration application made against it or a notice of intention to appoint an administrator has been given to any person;
ceases or threatens to cease to carry on its business, or makes any material change in its business; or
suffers any analogous process under foreign law.

“Intellectual Property Rights” means any and all intellectual and proprietary rights, titles and interests including, without limitation, all copyrights (for example rights in computer software), patent rights, trade or service marks, business or trade names, logos, trade dress, slogans, brand features, internet domain names and email addresses, rights protecting goodwill and reputation, know-how, design and database rights and compilations, domain names, moral rights, rights of publicity and all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognised in the future; and all applications, extensions and renewals in relation to any such rights.

“Kelkoo” means Kelkoo.com (UK) Limited, a company registered in England and Wales (registration number 03844739, whose registered office is at 5 ^th Floor, 60 Buckingham Palace Road, London SW1W 0AH, United Kingdom.

“Kelkoo Affiliate” means any joint venture of Kelkoo, or any entity that on or after the Effective Date directly or indirectly controls, is controlled by, or is under common control of Kelkoo, where “control” has the meaning set out in article L. 233-3 of the French Commercial Code.

“Kelkoo Brand Guidelines” means the brand treatment guidelines applicable to the Kelkoo Marks which are available from Kelkoo on request.

“Kelkoo Listing(s)” means the data, information, details, titles, descriptions, URLs, links, buttons, images or pictures relating to Merchants included in a Kelkoo Related Party’s “Kelkoo” shopping index or database as Licensed Materials displayed on a Listings Page (in response to a relevant Listing Request).

“Kelkoo Marks” means, from time to time, all marks, words, phrases, logos, symbols, devices, trademarks, service marks, trade or business names, domain names and applications for any of the foregoing owned by any Kelkoo Related Party or their subcontractors, suppliers or providers of information, content or software in connection with this Agreement.

“Kelkoo Related Party” means Kelkoo and Kelkoo Affiliates.

“Kelkoo Systems” means the computer systems, networks, computer programs and databases used by or on behalf of Kelkoo to provide any Kelkoo Listings.

“Licensed Materials” means (as applicable) each Kelkoo Listing, application, site or URL mapping information or any other thing made available to Publisher by or on behalf of Kelkoo in connection with this Agreement.

“Listing Request” means:

any request by a User for Kelkoo Listings to be displayed on a Listings Page;
any access or use by a User of a Publisher’s Offering which displays any Kelkoo Listings as envisaged under this Agreement; or
any access or use by a User of a URL which displays any Kelkoo Listings as envisaged under this Agreement.

“Listing Request Limit” means the limit on the aggregate number of Listing Requests which Publisher permits its Users to make, through the Licensed Materials, as notified to the Publisher by Kelkoo from time to time.

“Listings Page” means a page (or other window, sub-window, frame or site), if applicable, which displays Kelkoo Listings or other information in response to a Listing Request.

“Merchant” means, from time to time, a third party, including online merchants, that has a written agreement in effect with a Kelkoo Related Party to pay a Kelkoo Related Party for each Qualified Click by a User in a Territory or in respect of the relevant Territory.

“Page View” means the area of a display screen on a computer or other device which is visible by a User without scrolling down that screen or to the right or to the left of that screen.

“Publisher Information” means the information about the Publisher, its identity, the Publisher’s Offering and any other such information that the Publisher provides to Kelkoo.

“Publisher Interface” means the online portal where the Publisher can (a) initially sign up to be a Publisher with Kelkoo and (b) manage its relationship with Kelkoo (which may include managing technical, financial and other matters as part of this Agreement).

“Publisher’s Marks” means all of Publisher’s or its Affiliates’ marks, logos, symbols, devices, trade or service marks, trade or business names, domain names and applications for any of the foregoing.

“Publisher’s Offering” means, as applicable, in respect of each website specified in the Publisher Interface (including each page of such website): (a) all content, links, Publisher’s Marks, data and other information viewable on such website; and (b) all software available for download on such website, all underlying systems and programs that are used to power such website, and all Intellectual Property Rights that subsist in respect of such website; and excluding, for the avoidance of doubt, the Licensed Materials.

"Publisher Parameters” means URL parameters that can be used to pass values against each click on a Kelkoo Listing.

“Publisher’s Remuneration” means the Publisher Revenue less the Service Fee.

“Publisher Revenue” means the amount communicated to the Publisher either by email or in the Publisher Interface from time to time and determined as a fixed and/ or flexible amount of the Gross Revenue (relating to the relevant Territory for such month), based on the traffic quality attributable to the Publisher (taking into account the Conversion Rate and/ or other Performance Metrics applied by Kelkoo in the relevant Territory), as determined by Kelkoo in its absolute discretion. The Publisher acknowledges and agrees that Kelkoo may vary the amount relative to the Gross Revenue as it deems fit, including on a daily basis. The Publisher will be able to view a monthly earning report in the Publisher Interface.

“Qualified Click” means a User in a Territory clicking on (or otherwise creating an impression or conversion on) a Kelkoo Listing (if applicable) requesting to be taken to a page or site of a Merchant and which results in a charge payable to Kelkoo by the relevant Merchant. Kelkoo monitors the source of traffic through technical solutions which identify the country of ownership of IP addresses, and reserves the right not to remunerate the Publisher for any significant traffic levels sourced outside the Territory stated in the Publisher Interface.

“Search Box” means a free-text field (if any) displayed on the relevant Publisher’s Offering or otherwise distributed to Users through which a User may enter a Listing Request.

“Service Fee”means in respect of each month during the Term, 1% of the Publisher Revenue for such month;

“Specific Provisions” means any provisions identified as “SPECIFIC PROVISIONS” and expressly incorporated into this Agreement from time to time.

“Term” means the term of the Agreement as set out in clause 2.

“Territory” means the relevant country pertaining to the relevant Publisher’s Offering as set out in the Publisher Interface.

“URL” means a uniform resource locator or equivalent which uses a logical address to identify a site or page.

“User” means a human end-user of Publisher’s Offerings, excluding robots, meta spiders, macro programs, Internet or other devices or agents or any other automated means.

“User Agent” means that information which identifies the type of browser through which the User is accessing the world wide web.

“VAT”has the meaning given to it in the French General Tax Code, or any equivalent sales, value added or consumption taxes in an applicable Territory.

1.2 In this Agreement where the context admits: a reference to the singular form of a word includes the plural form of such word; references to any party include its successors and permitted assigns;“notice”means written notice;“year”,“quarter”and“month”means a calendar year, quarter or month as applicable; and“site”or“page”means any data, content or application used in connection with the Publisher’s Offerings or the Licensed Materials.

1.3 To the extent necessary, to avoid conflict or inconsistencies between the same, these “Publishers General Terms and Conditions” prevail over any details entered by the Publisher in the Publisher Interface.

2.TERM OF THIS AGREEMENT

2.1 This Agreement shall come into force when the Publisher first accepts these “Publishers General Terms and Conditions” (the “Effective Date”) and shall continue in force unless and until the relationship between the Publisher and Kelkoo is terminated for any reason.

3. PUBLISHER’S OBLIGATIONS AND WARRANTIES

3.1 Publisher shall:

provide, operate and maintain the Publisher’s Offerings in accordance with good e-commerce industry practice, this Agreement and any written instructions of Kelkoo from time to time;
ensure that any Listing Request Limit is not exceeded;
immediately provide each Listing Request to the Kelkoo Systems;
provide any URL for a Kelkoo Related Party to provide any Listings Page or Kelkoo Listings as envisaged under this Agreement;
provide all access, connectivity, links and functionality between the Publisher’s Offerings, Kelkoo Systems and Listings Pages as required by Kelkoo to allow a User to perform a Qualified Click; and
use best endeavours to prevent clicks which do or may not constitute Qualified Clicks, such as those which are fraudulent, unlawful, false, incentivised, forced, robotic, automated, mechanical, data mining or artificially repeated, including by ensuring that at all times the following occurs:
1. rel = “nofollow” is inserted in links to and from the Merchant site or page;
2. “Disallow” commands are inserted in the ‘robots.txt’ file in the Publisher’s Offering for any links which redirect to any site or page of a Merchant; and
3. javascript is used to obscure links used to reach Merchant sites or pages;
not remove, change or interfere with any copyright or other proprietary notices included in the Licensed Materials;
not participate in brand bidding in any capacity by bidding on the brand names associated with the Kelkoo Marks or with the Licensed Materials related to Kelkoo´s Merchants;
provide such information about traffic to the Publisher’s Offering (including the source of such traffic), and in such format, as Kelkoo may reasonably require from time to time for the implementation of this Agreement;
not place, display or otherwise promote the Kelkoo Listings on Google´s own comparison shopping services (Google Shopping) except with Kelkoo´s prior written authorization.

3.2 Publisher warrants and represents that:

at all times it has the right, power and authority both to enter into this Agreement and to fulfil its obligations under it in relation to each Publisher’s Offering;
it will carry out its obligations under this Agreement with reasonable skill and care and in a timely and professional manner using appropriately skilled and qualified persons; and
each Publisher’s Offering as envisaged under this Agreement is directed at Users in the relevant Territory therein (and not any other territory or Users) and is available in the relevant language of that Territory; and
it will make all reasonable efforts to provide Kelkoo with insight into traffic sources by utilising Publisher Parameters for all traffic delivered. It will also provide evidence such as URLs or screenshots of Kelkoo Listings in-situ, from time to time at Kelkoo´s request. This information will be used exclusively for the purposes of traffic compliance monitoring and analysis. In case of non-compliance by the Publisher with this clause 3.2 (d), Kelkoo reserves the right to limit its services. In case of traffic quality related disputes between Kelkoo and its Merchants as a consequence of the Publisher´s non-compliance with this clause 3.2 (d), Kelkoo reserves the right to withhold the relevant Publisher Remuneration until the dispute is resolved or, if the dispute cannot be resolved, to cancel the respective portion of the Publisher Remuneration.

4. COMPLIANCE WITH LAWS

4.1 Publisher warrants to each Kelkoo Related Party and undertakes that:

at all times:
1. it will comply with all Applicable Laws; and
2. the Publisher’s Offerings will not breach any third party rights or otherwise cause detriment or injury to any third party;
Publisher’s Offerings:
1. are not and are not likely to be false, misleading, threatening, abusive, racist, obscene or blasphemous;
2. are owned or validly licensed by Publisher (together with a right to license or assign as required under this Agreement); and
3. do not infringe, dilute or otherwise violate any Intellectual Property Rights.

4.2 Publisher shall ensure that it and relevant third parties inform Users that personal information may be collected, used and disclosed by, or transferred to, any number of Kelkoo Related Parties worldwide as envisaged, and for the purposes specified, under clause9(Tracking and Identification), and for the purpose of enabling Kelkoo to identify the location from which a User is carrying out a Listing Request in order to provide such User with Kelkoo Listings relevant to that location, and obtain the explicit consent of Users on behalf of Kelkoo Related Parties to do so in accordance with Applicable Laws.

4.3 Publisher shall ensure that:

Licensed Materials or personal or other information obtained or generated in connection with this Agreement are only processed, disclosed or transferred as strictly permitted in this Agreement and in accordance with the written instructions of a Kelkoo Party from time to time; and
appropriate technical, security and organisational measures are taken to protect those Licensed Materials and such information against accidental or unlawful destruction, accidental loss, alteration or against unauthorised or unlawful access or processing.

5. LICENSED MATERIALS

5.1 Kelkoo shall make available Kelkoo Listings (if any) relating to the Territory and the other Licensed Materials specified in this Agreement.

5.2 Publisher acknowledges and agrees that:

any indexes, databases or other information of or provided to a Kelkoo Related Party may be changed, updated and/or modified by a Kelkoo Related Party in its absolute discretion;
unless otherwise specified in this Agreement, each Kelkoo Related Party will have absolute control over the Kelkoo Listings and Listings Pages and the way in which they are implemented including, without limitation:
1. ceasing to supply, or requiring Publisher to cease displaying, any Kelkoo Listing or category of Kelkoo Listings in Kelkoo’s sole discretion; and
2. not to provide any Kelkoo Listings in respect of any given Listing Request (and provide a response that no Kelkoo Listings are being delivered), and
each Kelkoo Related Party and its licensors or subcontractors may in their absolute discretion make updates, upgrades or modifications to, or discontinue, suspend or cease the operation, maintenance or support of, their products and services from time to time.

5.3 Publisher shall immediately notify Kelkoo of any Kelkoo Listings which involve a breach of any of clauses 3 (Publisher’s Obligations and Warranties), 4 (Compliance with Laws) and/or 15 (Restrictions on Use).

6. REMUNERATION

6.1 After the end of each calendar month, Kelkoo shall inform Publisher of the Publisher Revenue due to the Publisher for such month. It shall make such information available to the Publisher either through the Publisher Interface or in any other reasonable manner.

6.2 If Publisher does not agree with the Publisher Revenue, it must notify Kelkoo within five (5) days of the relevant amount being communicated to the Publisher either by email or in the Publisher Interface, failing which Publisher acknowledges that it will be deemed to have accepted in its entirety the accuracy of the amount of Publisher Revenue, and that no additional amounts will be payable in respect of that month.

6.3 Publisher must provide a valid, undisputed VAT invoice in respect of any Publisher´s Remuneration, provided that such invoice must accurately reflect the amount of Publisher Revenue stated by Kelkoo and must be addressed to the correct billing entity as specified in that invoice.

6.4 Publisher agrees that Kelkoo may in its absolute discretion determine whether a click counts as a Qualified Click for the purposes of the Publisher Revenue.

6.5 Kelkoo shall use best endeavours to pay Publisher the Publisher’s Remuneration within forty-five (45) days of the completion of the process set out in clauses 6.1-6.3 above (unless agreed otherwise).

6.6 Kelkoo may set off any Publisher’s Remuneration against any amount owed to any Kelkoo Related Party by Publisher or any Affiliate of Publisher.

6.7 The minimum threshold for submitting an invoice to Kelkoo for payment is 300 Euros (or its equivalent in another currency) per calendar year. Invoices below this threshold will be accumulated and processed once the threshold has been reached.

7. EXCLUSIVITY

7.1 Publisher shall not during the term of this Agreement and for a period of six (6) months following expiry or termination of this Agreement, except with the prior written permission of Kelkoo, enter into an agreement (formal or informal, and directly or indirectly) with any Merchant for the display by Publisher of products or offers relating to such Merchant.

8. LICENCE AND INTELLECTUAL PROPERTY RIGHTS

Each party grants to the other:

in the case of Publisher, to each Kelkoo Related Party a royalty-free, irrevocable, world-wide, non-exclusive, perpetual licence (and right to sub-license) to use, copy, reproduce, display, modify and adapt:
1. the Publisher’s Offerings
2. any other item or thing provided by or on behalf of Publisher in connection with thisAgreement and
3. all other Intellectual Property Rights required in connection with this Agreement, all for the purposes of complying with the terms of this Agreement; and
in the case of Kelkoo, to Publisher (for the Term and unless provided otherwise in any Specific Provisions or this Agreement) a limited, non-exclusive, non-assignable, non-transferable, non-sub-licensable, royalty-free, revocable licence to use and display the Kelkoo Listings, Kelkoo Marks and other Licensed Materials to the extent necessary solely for Users in the Territory to perform Qualified Clicks.

9. TRACKING AND IDENTIFICATION

9.1 The parties shall use best endeavours to work together to prevent any automated or otherwise invalid use of the Licensed Materials by or through the use of bots, meta spiders, macro programs or any other automated, fraudulent or inappropriate means.

9.2 Publisher also agrees that Kelkoo and its suppliers of Licensed Materials may attach to any URL of Publisher or any Affiliate of Publisher a tracking tag or other device in order for Kelkoo and its suppliers of Licensed Materials to identify the URL source of the Listing Request and analyse any technical information required which is necessary to fulfil the obligations under this Agreement.

Kelkoo may share this information with Kelkoo Related Parties and any or all suppliers of Licensed Materials and advertisers.

9.3 Publisher shall at all times ensure that such tracking tags or other devices do not in any way affect the operation or use of the relevant URL (for example by Users).

10. DATA PROTECTION

10.1 For the purposes of this clause 10, the terms “personal data”, “data controller”, “processing” and “data subject” shall have the meanings given to those terms in the GDPR.

10.2 The Publisher acknowledges and agrees that:

Kelkoo shall be the data controller and Publisher shall be the data processor in respect of personal data processed under this Agreement and in particular pursuant to clause 9 (Tracking and Identification) above;
Kelkoo agrees to make available to Publisher any and all necessary information to process personal data under this Agreement; and
Kelkoo alone shall determine the purposes for which and the manner in which such personal data will be processed by Publisher under this Agreement and in particular pursuant to clause 9 (Tracking and Identification) above.

10.3 The Publisher shall:

process all such personal data on behalf of Kelkoo only for the purposes of performing its obligations under this Agreement and in accordance with the written instructions given by Kelkoo from time to time. If Publisher considers that an instruction given by Kelkoo infringes the GDPR, it shall immediately notify Kelkoo;
promptly deal with any enquiry from Kelkoo which relates to the processing of personal data by Publisher;
assist Kelkoo
1. in carrying out any data protection impact assessment(s) or
2. in connection with any prior consultation of the competent data protection regulatory authorities;
procure that any Publisher personnel who have access to personal data shall comply with the provisions of the GDPR and that such Publisher personnel are contractually bound by confidentiality obligations in relation to personal data in line with the Publisher’s obligations under this Agreement or are bound by any appropriate statutory confidentiality obligations and have received appropriate data protection training;
take into account, in relation to its tools, products, applications and services, the principles of data protection by design and data protection by default;
provide Users, at the time of data collection, with the information on the data processing carried out in particular pursuant to clause 9 (Tracking and Identification) above and obtain from Users consent to such data processing. The form and content of said information to be provided to Users shall be agreed with Kelkoo prior to any data collection by the Publisher;
promptly, and no later than twenty-four (24) hours after becoming aware, provide to Kelkoo all information in its possession concerning any personal data breach (unauthorised or accidental disclosure of or access to) including all relevant documentation in order to enable Kelkoo, if necessary, to notify this breach to the competent data protection regulatory authority and/or to communicate with the User(s) concerned;
not disclose any personal data to any third party in any circumstances other than at Kelkoo's specific written request or where required to do so by the GDPR and ensure confidentiality of the personal data processed under this Agreement in accordance with clause 11 (Confidentiality) below;
use appropriate technical, security and organisational measures to ensure a level of security appropriate to the risk and prevent unauthorised or unlawful processing of personal data and accidental loss, destruction, damage, theft, use or disclosure of such personal data, including inter alia
1. the pseudonymisation and encryption of personal data,
2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services,
3. the ability to restore the availability of and access to personal data in a timely manner in the event of a physical or technical incident,
4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the data processing;
not transfer, and will not authorise the transfer of, any such personal data outside the European Union, save where authorised or instructed by Kelkoo in writing to do;
notify Kelkoo within three (3) Business Days if it receives a request or enquiry from a User exercising its rights under the GDPR;
promptly assist Kelkoo with the fulfilment of its obligations to respond to requests or enquiries from users exercising their rights under the GDPR: right of access, right to amend, right to delete, right to oppose, right to limit the data process, right to data portability, right not to be subject to individual automated decision-making (including profiling); and
make available to Kelkoo all documentation necessary to demonstrate compliance with all its obligations under the GDPR and allow for and contribute to audits, including inspections, conducted by Kelkoo or any another auditor appointed by Kelkoo for the purposes thereof.

10.4 The Publisher shall indemnify Kelkoo against all direct and indirect losses, damages, costs and expenses (including reasonable legal costs and expenses) suffered or incurred by Kelkoo or any Kelkoo Affiliates arising out of or in connection with the loss, destruction or unauthorised disclosure of, or unauthorised access to or use of personal data, as a result, of the Publisher's failure to comply with the provisions of this clause 10 or the GDPR in performing its obligations under this Agreement.

10.5 The Publisher shall maintain, in writing, a register of any category of processing activities carried out in the name of and on behalf of Kelkoo, which shall include:

the name and contact details of Kelkoo and the name and contact details of Kelkoo’s representative;
the categories of processing activities carried out in the name and on behalf of Kelkoo; and
where possible, a general description of the technical and organisational security measures.

10.6 Save as otherwise provided in this Agreement, the Publisher undertakes to not store nor copy any personal data processed by it under this Agreement and the Publisher shall justify the deletion thereof in writing to Kelkoo upon request from Kelkoo or at expiry or termination of this Agreement for any reason whatsoever, the Publisher undertakes to delete all the personal data processed by it under this Agreement / return all the personal data processed by it under this Agreement to Kelkoo / return all the personal data processed by it under this Agreement to another processor appointed by Kelkoo. The return of such personal data processed by the Publisher under this Agreement shall be followed by the deletion of the existing copies stored on the Publisher’s information systems. Once they have been deleted, the Publisher shall justify the deletion thereof in writing to Kelkoo.

11. CONFIDENTIALITY

Save as otherwise provided in this Agreement, each party agrees not to disclose any information of a confidential nature regarding any other party (“Confidential Information”) to any third parties during the Term and for three (3) years thereafter except:

with the prior written consent of the relevant other party;
if such information was publicly known and made generally available in the public domain prior to the time of disclosure;
if such information becomes publicly known and made generally available after the information is received through no action or inaction of the receiving party;
if such information was already in the possession of the receiving party from a third party who had the right to provide such information (as evidenced by written records);
if such information is independently developed by the receiving party without use of or reference to the information;
to its employees, officers, directors, agents, accountants, attorneys and auditors and also, in the case of Kelkoo, to a Kelkoo Related Party, Kelkoo Affiliate or proposed assignee or transferee; or
to a court, government agency or regulatory authority, provided reasonable endeavours are used to protect the confidentiality of the information.

12. INDEMNITY

12.1 The Publisher shall on demand fully indemnify and hold harmless and shall keep indemnified and held harmless (during and after the Term) Kelkoo and each of its licensors and sub-licensees and subcontractors, and each of its agents, employees and representatives (each a “Kelkoo Indemnitee”) against any expense, cost, liability, loss, damage, action, claim or proceeding of whatsoever nature (including, without limitation, reasonable legal fees and disbursements and any tax payable by a Kelkoo Indemnitee) arising from or incurred in connection with:

any actual or alleged infringement of any Intellectual Property Rights licensed or assigned to any Kelkoo Related Party or its permitted sub-licensees under this Agreement;
any breach of any of the provisions of Clauses3(Publisher’s Obligations and Warranties),4(Compliance with Laws), 8 (Licence and Intellectual Property Rights), 11(Confidentiality) or15(Restrictions on Use); or
the access or use of any Publisher’s Offering, or any refund to a Merchant for reasons relating to traffic quality in connection with any Publisher’s Offering.

12.2 Kelkoo shall on demand fully indemnify and hold harmless and shall keep indemnified and held harmless (during and after the Term) the Publisher and each of their agents, employees and representatives, (each a“Publisher Indemnitee”) against any expense, cost, liability, loss, damage, action, claim or proceeding of whatsoever nature (including, without limitation, reasonable legal fees and disbursements and any tax payable by a Publisher Indemnitee) arising from or incurred in connection with any actual or alleged infringement of any Intellectual Property Rights licensed or assigned to the Publisher under this Agreement;

12.3 In respect of the indemnitiespursuant to this Agreement, Kelkoo or the Publisher, as the case may be, shall procure that:

each Kelkoo Indemnitee or each Publisher Indemnitee will give the indemnifying party such information, assistance and co-operation as is reasonable in order to defend such claim or demand; and
each Kelkoo Indemnitee or each Publisher Indemnitee will have sole control of the defence and all related settlement negotiations, provided that it/Kelkoo must not take or fail to take any action which would be prejudicial to the other party without the prior written consent of that party.

13. DISCLAIMER OF WARRANTIES

Unless expressly provided in this Agreement or as required by Applicable Laws,each Kelkoo Related Party expressly disclaims all conditions, terms, warranties, collateral agreements or representations, whether expressed or implied and, without limiting the foregoing, Kelkoo makes no representation and gives no warranty as to the availability, functionality, security, accuracy, currency, content, satisfactory quality or fitness for purpose in respect of any Licensed Materials, site, portal, page, hardware, software, systems, goods or services or that any of them will be uninterrupted or error-free.

14. LIABILITY

14.1 Save as otherwise provided in this Agreement, no party shall be liable to any other party for any loss of profits, goodwill or anticipated savings, whether direct or indirect; or any costs of procurement of substitute goods or services, or for any indirect, special, incidental, punitive or consequential loss or damage, in each case in connection with this Agreement (whether under contract, tort (for example negligence), statute or otherwise) and even if such party has been advised of the possibility of such damages, nor for loss or damage to the extent a Force Majeure Event directly affects, or its consequences directly affect, the affected party.

14.2 Kelkoo shall not be liable to the Publisher for any loss, liability, damage, cost, expense, charge, claim or proceeding (whether under contract, tort (for example negligence), statute or otherwise) arising out of or in connection with:

any act or omission of, or any materials, content, data, information, software, systems, items or things provided by or on behalf of, any person other than a Kelkoo Related Party or a subcontractor of Kelkoo; or
any clicks on Kelkoo Listings which Kelkoo in its absolute discretion determines are not Qualified Clicks.

14.3 Subject to clause 14.4 below, a party’s liability to any other party in connection with this Agreement (whether under contract, tort, statute or otherwise) shall not in aggregate exceedthe Publisher’s Remuneration paid by Kelkoo to the Publisher in each case during the twelve (12) months immediately prior to the relevant cause of action arising. A party’s liability to any other party in relation to any indemnity envisaged under this Agreement shall not in aggregate exceed 500,000.00 Euros.

The limitation of liability set out above does not apply in case of regulatory fines imposed on Kelkoo by a national data protection authority or any relevant jurisdiction or authority for breach by the Publisher of the data protection laws and regulations.

The Publisher agrees that the limit on liability in this clause is an aggregate limit which includes any liability of each Kelkoo Related Party so that the total amount recoverable from all of the Kelkoo Related Parties cannot exceed that limit.

14.4 Nothing in this Agreement shall operate to exclude or restrict:

any party’s liability for death or personal injury arising out of its negligence;
any party's liability for fraud or the tort of deceit;
a party's liability for breach of clause11(Confidentiality); or
any liability of the Publisher in relation to the provisions of clause7(Exclusivity).

15. RESTRICTIONS ON USE

15.1 The Publisher shall at all times ensure that:

Users are not offered an incentive or inducement to click on any Listings unless as expressly set out in this Agreement, and are not misled in relation to the use of any Kelkoo Listings (if applicable); and
Publisher’s Offerings do not contain any content which is offensive.

15.2 The Publisher shall ensure that any use or display of the Kelkoo Marks is in accordance with the Kelkoo Brand Guidelines.

15.3 The Publisher shall at all times ensure that none of the following occur in connection with the Publisher’s Offerings, the Licensed Materials or the Kelkoo Systems:

anything appearing between a Listing Request and the relevant Kelkoo Listings;
the masking of any tracking information envisaged under clause9(Tracking and Identification);
the obstruction or obscuring of either Kelkoo Listings or other Licensed Materials or of the means of a User to perform a Listing Request;
any Listing Request that is not solely initiated by a User;
Listing Requests from or after any error message page;
Listing Requests performed by a User selecting a back button;
Users being able to link between Kelkoo Listings and other parts of Publisher’s Offerings after performing a Listing Request;
the installation, replacement or changing of any software or equipment of a User without the User’s prior consent;
Listing Requests being performed or Kelkoo Listings being displayed from or within pop-up, pop-over or pop-under windows;
Listing Requests being generated from anything other than the Licensed Materials unless expressly provided otherwise in this Agreement;
Kelkoo Listings other than on or via the relevant Publisher’s Offering;
any use of the Licensed Materials to detect or display the position or movement of vehicles, persons or other objects;
the repeated extraction of any Kelkoo Listings or the storage of Kelkoo Listings or other Licensed Materials on servers of the Publisher or any Publisher’s Offerings other than strictly as necessary for an individual Listing Request to be generated by Users and corresponding Kelkoo Listings to be displayed to Users;
Publisher traffic deriving from pornographic or illegal websites or other sources.

15.4 Publisher shall at all times ensure that:

the Licensed Materials are only displayed through an on-line Internet world-wide web service and are not used in relation to any site or territory except the relevant Publisher’s Offering for the Territory;
the Kelkoo Marks are at all times clearly displayed with the Licensed Materials in the manner set out in this Agreement and in accordance with all guidelines, instructions and standards supplied by or on behalf of Kelkoo to Publisher from time to time;
the Licensed Materials, Kelkoo Systems, Kelkoo Marks and Listing Requests are not in any way modified, adapted, copied, substantially extracted or reutilised (including, without limitation, when using, printing or storing the Licensed Materials), distributed, disassembled, reverse engineered or decompiled for any reason (except to the extent such activity is required to be permitted under applicable law), or encumbered, sold, made available or assigned (other than as expressly permitted in this Agreement); and
the Licensed Materials are not used in any manner which does or may dilute, diminish, or otherwise damage the rights or goodwill of any Kelkoo Related Party in relation to any of them.

15.5 If at any time the Publisher is in breach of any provision of this Agreement or Kelkoo considers that the traffic quality attributable to the Publisher, either directly or indirectly, is not of a suitable standard, Kelkoo may, in its absolute discretion and without prejudice to its rights under clause16 (Termination and Consequence of Termination), suspend the provision of any or all Licensed Materials, and the payment of Publisher’s Remuneration, until such time as either:

Kelkoo reasonably considers that the Publisher has remedied such breach (where such breach is capable of remedy); or
The Publisher has complied with such instructions as Kelkoo reasonably considers are necessary in order to improve the traffic quality.

16. TERMINATION AND CONSEQUENCES OF TERMINATION

16.1 At any time after the Effective Date, Kelkoo may terminate this Agreement for convenience on 30 days’ written notice to the Publisher.

16.2 Any party may terminate this Agreement (or any part thereof) by giving notice to the other party at any time:

after the other party is in material breach of this Agreement and either such breach is not capable of remedy or, if the breach is capable of remedy, is not remedied within ten (10) days following the date of notice to remedy;
after the other party has an Insolvency Event occur in relation to it; or
any governmental or regulatory action, or third party claim, proceeding or allegation is brought in connection with or due to (in case of termination by the Publisher) the Kelkoo Listings or (in case of termination by Kelkoo) the Publisher’s Offerings;
after the other party directly suffers a Force Majeure Event or its consequences for a period of at least sixty (60) consecutive days.

16.3 Kelkoo may terminate this Agreement with immediate effect (or any part thereof) or suspend the provision of the Licensed Materials by giving notice to the Publisher at any time after:

The Publisher commits any breach of Clauses3(Publisher’s Obligations and Warranties),4(Compliance with Laws),8(Licence and Intellectual Property Rights),12(Indemnity), and/or15(Restrictions on Use);
a Kelkoo Related Party has evidence that:
1. a material complaint has been received by a Kelkoo Related Party in relation to this Agreement; or
2. any Kelkoo Related Party is receiving a type of traffic which is less than that which Kelkoo determines, in its reasonable discretion, is acceptable;
any person acquires the ability to direct the affairs of the Publisher or any Affiliate of Publisher by shares, contract or otherwise, or substantially acquires any assets of the Publisher or any Affiliate of the Publisher.

16.4 Where this Agreement is terminated or expires:

the rights and the obligations of the relevant parties under this Agreement (including, for the avoidance of doubt, under the Publisher Interface) shall terminate and be of no future effect, other than those provisions which expressly or by their nature survive;
each party shall immediately cease using and return to each other party all property (for example Confidential Information and Intellectual Property Rights) of each other party;
any accrued rights or obligations of either party shall not be affected; and
in the event of termination by Kelkoo, it shall have no further liability to the Publisher in connection with this Agreement except for undisputed payments then due from Kelkoo to the Publisher under this Agreement.

17. ASSIGNMENT

17.1 The Publisher may not assign, novate, transfer, and sub-contract or otherwise dispose of any or all of its rights and/or obligations under this Agreement without Kelkoo’s prior written consent, such consent not to be unreasonably withheld.

17.2 Kelkoo may at any time assign, novate, transfer, and sub-contract or otherwise dispose of any or all of its rights and/or obligations under this Agreement to any of its Affiliates without notice to the other party.

18. VARIATIONS

18.1The Publisher acknowledges and agrees that the Publishers General Terms and Conditions may be amended by Kelkoo from time to time. Kelkoo shall notify the Publisher of such changes, and their effective date, through the Publisher Interface and the Publisher should review the terms there periodically.

19. GENERAL PROVISIONS

19.1 Kelkoo or its legal representatives may address all notices and other communications in relation to this Agreement to the representative of the Publisher or to such other representative and address as advised by the Publisher to Kelkoo from time to time in writing).

19.2 The rights and benefits of any Kelkoo Related Party may be enforced directly against the Publisher by such Kelkoo Related Party. Any amendment to this Agreement must be in writing and executed by each of the parties.

19.3 No party shall be liable to any other party under this Agreement to the extent of any failure or delay in the performance of its obligations as a result of any Force Majeure Event.

19.4 This Agreement, and each document expressly referred to herein, constitutes the entire agreement between the parties with respect to its subject matter. Save as otherwise provided in clause 18 (Variations) above, any amendments or variations to this Agreement must be in writing and executed by each of the parties.

19.5 If any provision of this Agreement is held or made invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect the remainder of this Agreement.

19.6 At any time after the Effective Date hereof each of the parties shall, at the request and cost of the requesting party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the party so requiring may reasonably require for the purpose of giving to the party so requiring the full benefit of all the provisions of this Agreement.

19.7 This Agreement and all matters arising from or in connection with it shall be governed and construed in accordance with the laws of France, without regard to its conflict of law principles. Any legal action or proceedings in connection with this Agreement shall be settled by the French courts and each party irrevocably submits to their exclusive jurisdiction.

Traffic Quality Specific Provisions

These Specific Provisions relate specifically to the improvement of traffic quality in the Kelkoo network.

1. Definitions

“Conversion” means an agreement between the User and the relevant Merchant for Users to buy goods and/or services following a Qualified Click or an equivalent action by a User, as determined by Kelkoo, such as registering a request for further information regarding the relevant goods and services.

“Conversion Rate” means the percentage of Qualified Clicks which are followed by a Conversion.

“Performance Metric” means the amount or other requirement specified as the “Performance Metric” in these Specific Provisions.

2. Additional Kelkoo Termination Rights

Kelkoo may terminate the Agreement with immediate effect or suspend the provision of the Licensed Materials by giving notice to the Publisher at any time after:

Kelkoo in its absolute discretion determines that:
1. a prejudicial effect or damage to the goodwill of Kelkoo or an Affiliate of Kelkoo may occur as a result of Publisher’s conduct, whether in connection with the Agreement or otherwise;
2. any Listing Request or clicks on paid listings may not involve Qualified Clicks;
3. any complaint may be received by Kelkoo or an Affiliate of Kelkoo in relation to this Agreement; or
4. any Related Party is receiving a type of traffic in respect of which the Conversion Rate is less than that which Kelkoo determines, in its absolute discretion, is acceptable;
The Publisher commits any breach of these Specific Provisions.

3. Traffic-related Publisher Obligations

3.1 Without prejudice to the Publisher’s obligations under the Agreement, the Publisher shall:

ensure that each advertisement landing page provided on the Publisher’s Offering identifies the same Merchant and displays the same product or service each as is identified and displayed in the corresponding advertisement creative containing content from the Licensed Materials;
ensure at all times, in respect of each Publisher’s Offering, that no more than 5% of all Listing Requests originated in a country that is not a Territory during the immediately preceding thirty (30) day period;
provide such information about traffic to the Publisher’s Offering (including the source of such traffic), and in such format, as Kelkoo may require from time to time.

3.2 The Publisher represents and warrants that each Publisher’s Offering as envisaged under this Agreement is directed at Users in the relevant Territory (and not any other territory or Users) and is available in the relevant language of that Territory.

4. Amendment or Suspension of Payment due to Bad Traffic

If Kelkoo considers that the traffic quality attributable to the Publisher, either directly or indirectly, is not of a suitable standard or has a Conversion Rate that Kelkoo considers is not appropriate, Kelkoo may, in its absolute discretion and without prejudice to its rights under the Agreement:

amend the Publisher Revenue amount by such proportion as Kelkoo deems appropriate in order to reflect the quality of the Publisher traffic; and/or
suspend the provision of any or all Licensed Materials, and the payment of Publisher’s Remuneration, until such time as either Publisher has complied with such instructions as Kelkoo reasonably considers are necessary in order to improve the traffic quality or the Conversion Rate attributable to the Publisher’s Offerings.

5. Indemnity

Without prejudice to Kelkoo’s rights under the Agreement, the Publisher shall on demand fully indemnify and hold harmless and shall keep indemnified and held harmless (during and after the Term) Kelkoo or each of Kelkoo’s Affiliates, each of their licensors and sub-licensees and subcontractors, and each of their agents, employees and representatives, (each an “Indemnitee”) against any expense, cost, liability, loss, damage, action, claim or proceeding of whatsoever nature (including, without limitation, reasonable legal fees and any tax payable by an Indemnitee) arising from or incurred in connection with any refund to a Merchant for reasons relating to traffic quality in connection with any Publisher’s Offerings.