Oracle America, Inc. (“Oracle”) and the Publisher (as defined in Section 2 herein) hereby agree to the terms and conditions set forth in these
Terms of Service (the “Terms of Service”). These Terms of Service confirm and clarify respective rights and obligations between Oracle and the
Publisher in connection with Publisher’s access to and use of the AddThis Platform and the Services.
1. DEFINITIONS. The following terms have the meanings ascribed to them below. All references to Section or Subsection numbers refer to
Sections or Subsections in these Terms of Service, unless expressly stated otherwise.
- “Account” means an account created for Publisher by completing the registration process on the Site for Publisher’s authorized access to and use of the Services on the Site.
- “AddThis Platform” means the Oracle proprietary marketing platform, which facilitates online and application marketing, personalization, and sharing Publisher Content on the web through use of AddThis Tools powered by a management and analytics dashboard that allows participating websites to offer personalized recommendations and messaging, and allowing their End Users to share Publisher Content using such AddThis Tools.
- “AddThis Technology” means software, code, proprietary methods and systems used to provide the Site or Services. AddThis Technology includes the AddThis Platform, AddThis Tools, Site and Downloadable Code.
- “AddThis Tools” means the buttons, widgets, toolboxes and other Oracle tools used by an End User on the Publisher Site to share, follow, view, recommended and interact with Publisher Content.
- “Downloadable Code” means the code provided on the Site that enables the installation of the AddThis Tools and other AddThis Technology on the Publisher Site(s).
- “End User” means an individual who is accessing a Publisher Site.
- “Personnel” means, collectively or individually, as the context requires, those employees, agents, contractors and consultants of a party and those of its consultants, subcontractors, representatives, agents, or subcontractors.
- "PI" means information defined as personally identifiable or personal information or data by the applicable Rules of the jurisdiction Publisher Data is collected.
- “Publisher Content” means the content on the Publisher Site.
- “Publisher Data” means the data collected from the Publisher Site(s) (i) upon download of the AddThis Tools by the Publisher and (ii) regarding End User’s visit to and activity on the Publisher Site(s).
- “Publisher Site” means a website, URL, web page and software application, or mobile device application owned or operated by Publisher on which the Services are enabled or used.
- “Rules” means all applicable data protection, electronic communications and privacy laws, rules, regulations, regulatory guidelines, as well as
any applicable self-regulatory guidelines, including, without limitation each of the Self-Regulatory Principles of the Digital Advertising Alliance
(“DAA”), currently available at http://www.aboutads.info/principles, the Code of Conduct of the Network Advertising Initiative (“NAI”),
currently available at http://www.networkadvertising.org/code-enforcement/code
and the NAI Mobile Application Code (currently available at http://www.networkadvertising.org/mobile/NAI_Mobile_Application_Code.pdf),
and the Principles of the European Interactive Digital Alliance (“EDAA”), currently available at http://www.edaa.eu/european-principles/, as each
set of principles may be amended from time to time.
- “Services” means the technology, services, and applications provided by Oracle including, without limitation, reports or other customized services that are related to the Publisher Site(s).
- “Site” means www.addthis.com.
2. GENERAL. Publisher is the owner or operator of the Publisher Site(s) (“Publisher”) and desires to use the AddThis Platform to personalize the Publisher Content, recommendations and messaging on Publisher Site(s), and to allow End Users to, among other things, share, follow, view, recommended and interact with Publisher Content using the AddThis Tools. The AddThis Platform is designed to maximize distribution of Publisher Content, drive traffic back to the Publisher Site(s), boost conversion on the Publisher Site(s) (such as signups and purchases), and provide Publisher with insight into End Users’ engagement, conversion and other activities on Publisher Site(s).
- LICENSE. By downloading the Downloadable Code from the Site and accessing or using the Services on the Publisher Site(s) or within Publisher Content, the Publisher agrees that Oracle may collect Publisher Data related to an End User's visit to and activity on the Publisher Site(s) and use of the AddThis Tools.
- By downloading the Downloadable Code from the Site and accessing or using the Services on the Publisher Site(s) or within Publisher Content, except as specified in Section 11, Publisher grants Oracle a worldwide, perpetual, royalty-free, irrevocable, nonexclusive, fully sublicensable license to:
- use, reproduce, modify, adapt, translate, publish, publicly perform, publicly display, broadcast, transmit and distribute the Publisher Data for any purpose and in any form, medium, or technology now known or later developed. This includes, without limitation, the right to incorporate or implement the Publisher Data into any Oracle product or service (including the Services), and to display, market, sublicense and distribute the Publisher Data as incorporated or embedded in any product or service (including the Services) distributed or offered by Oracle without compensation to Publisher.
- Publisher warrants that: (a) it has the right and authority to grant this license; (b) Oracle’s exercise of the rights granted pursuant to this license will not infringe or otherwise violate any End User’s or any third party rights; and (c) all so-called moral rights in the Publisher Data have been waived to the full extent allowed by law.
3. PUBLISHER ACCOUNT.
- In order to access the AddThis Platform and as part of the Services, reports or other customized services that are related to the Publisher Site(s), Publisher must create an Account on the Site.
- Publisher agrees to provide only true, current, accurate, and complete registration information, and keep that information true, accurate, and up-to-date.
- Publisher must abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Services, including the Rules and those related to data privacy, international communications and the transmission of technical or personal data. Publisher may not use its Account in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others.
- Publisher may be required to choose a password and a user name. Access to and use of password protected or secure areas of the Site are restricted to authorized Personnel only. Publisher agrees not to share password(s), account information, or access to the Site with any person other that authorized Personnel of Publisher. Publisher may not authorize any third party to use its Account. Publisher is responsible for maintaining the confidentiality of password(s) and Account information, and is responsible for all activities that occur through the use of its password(s) or Account(s) or as a result of Publisher’s access to the Site. Publisher agrees to notify Oracle immediately of any use of its password(s) or Account(s) that it did not authorize.
- Fees. Publisher will pay all applicable fees when due in accordance with any plan, invoice or other applicable terms, including billing and payment frequency, associated with the level and type of Services selected by Publisher upon Account creation.
- If Publisher is a U.S. Government end user, any of the components that constitute AddThis Technology and its related documentation is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire AddThis Technology and any documentation provided with the Services with only those rights set forth in this Terms of Service.
4. PUBLISHER CONTENT.
- Publisher is responsible for the Publisher Content on the Publisher Site(s) and agrees that it will only upload, share, post, publish, transmit, display or otherwise make available on the Publisher Site(s) or through the Services ("Share"), content that it has the right and authority to Share and for which Publisher has all rights and authority to grant to Oracle all of the licenses and rights set forth herein.
- Publisher agrees that no Publisher Content will:
- Infringe the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
- Violate the privacy, publicity, or other rights of third parties;
- Be false or inaccurate or become false or inaccurate at any time;
- Be discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
- Disclose or provide information protected under any law, terms of service, contract or fiduciary relationship, including but not limited to proprietary or confidential information of others;
- Misrepresent the source of the Publisher Content;
- Contain any virus, Trojan horse, worm, time bomb, cancelbot, or other disabling device or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data;
- Advocate or encourage any illegal activity; or
- Have the potential to create liability for Oracle or cause Oracle to violate the requirements of or to lose the Services, in whole or in part, of Oracle’s Internet service providers or other suppliers.
- Oracle does not endorse any Publisher Content or any opinion, recommendation, or advice expressed in any Publisher Content, and Oracle expressly disclaims any and all liability in connection with any Publisher Content. Oracle may decide whether any Publisher Content is inappropriate or not in compliance with this Terms of Service and reserves the right to remove and/or suspend or terminate Publisher’s use of the Services at any time, without prior notice and in Oracle’s sole discretion. Sharing of certain kinds of Publisher Content may be prohibited by other services (e.g. Facebook's terms prohibit sharing of advertising using Facebook's social plug-ins).
- Termination. Publisher acknowledges and agrees that Oracle, in its sole discretion, may terminate Publisher’s use of the Site and/or the Services without prior notice for any reason at any time. Publisher agrees that Oracle shall not be liable to Publisher or any third party for termination by Oracle.
- Effect of Termination. Upon any termination of this Terms of Service, Publisher shall immediately discontinue all access to and use of the Services and remove all AddThis Tools, Downloadable Code and other AddThis Technology from the Publisher Site(s) and each party shall (i) immediately discontinue all use of the other party’s Confidential Information; (ii) delete the other party’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; and (iii) destroy all copies of such other party’s Confidential Information then in its possession. Oracle, in its discretion, may close, Publisher’s Account.
- Survival. Those Sections that by their nature would reasonably be expected to survive will survive termination or expiration of this Terms of Service, including Ownership and AddThis Licenses, AddThis Trademarks, Data Collection, Rights and Publisher Policies, Confidential Information, Limitations of Liability and Publisher Content, Indemnification, Miscellaneous and this Section. Any provisions regarding ownership and any licenses that by their terms survive termination, will survive the expiration or termination of the Terms of Service for any reason.
6. GENERAL RULES OF CONDUCT. Publisher agrees not to, nor allow anyone accessing Publisher’s Account or the Site or Services, to:
- Conduct or promote any illegal activities while using the Site or Services;
- Upload, distribute, post, transmit or otherwise make available, including through the AddThis Platform or Services, any Publisher Content or information that is unlawful, harmful, threatening, abusive, harassing, defamatory, pornographic, vulgar, obscene, libelous, invasive of another's privacy, hateful, harmful to minors in any way, or racially, ethnically or otherwise objectionable;
- Attempt to reverse engineer or jeopardize the correct functioning of the Site or Services, or otherwise attempt to derive the source code of the AddThis Technology (including the tools, methods, processes, and infrastructure) or other code or software that enables or underlies the Site or Services;
- Modify, change or alter in any way, the proprietary Publisher Content of a third party using the AddThis Technology or Services;
- Use the Services in any manner which interferes with the performance or functionality of the APIs or the AddThis Technology or Services;
- Attempt to gain access to secured portions of the Site or Services to which Publisher does not possess access rights;
- Load or transmit any form of virus, worm, Trojan horse, or other malicious code;
- Promote or advertise any item, good or service that (i) violates any applicable federal, state, or local law or regulation, including, the Rules, (ii) violates the terms of service of any website upon which the Publisher Content is viewed or (iii) Oracle determines, in its sole discretion, is inappropriate to be promoted through the Site or the Services;
- Use the Site or Services to generate unsolicited email advertisements or spam;
- Use any automatic, electronic or manual process to access, search or harvest information from the Site or Services, or to interfere in any way with the proper functioning of the Site or any AddThis Technology or Services;
- Use the Site or Services to stalk, harass or harm another individual;
- Use any robot, spider, other automatic device, or manual process to extract, "screen scrape," monitor, "mine," or copy any static or dynamic web page on or through the Site or Services, or any Publisher Content contained on any such web page for commercial use;
- Impersonate any person or entity, or otherwise misrepresent Publisher’s affiliation with a person or entity; or
- Mirror or frame the Site or any portion of the Site, place pop-up windows over its pages, or otherwise affect the display of its pages.
7. OWNERSHIP AND ADDTHIS LICENSES. Publisher understands and acknowledges that the AddThis Technology is: (i) copyrighted by Oracle or its
licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and
(iii) owned by Oracle or its licensors. Subject to the terms of this Terms of Service, Oracle hereby grants to Publisher a limited, non-exclusive,
worldwide license to use and reproduce the Downloadable Code and to display the AddThis Tools as manifested by the Downloadable Code, with the
understanding that this right and license is only granted to Publisher and may not be sublicensed or transferred to any other party. Publisher
may modify the Downloadable Code only as described in the Oracle support documents or otherwise authorized in writing by Oracle,
but in no event may Publisher modify the Downloadable Code in a manner that removes, diminishes or otherwise obscures any of AddThis Marks
(as hereinafter defined), notices or links back to the Site or breaches any of Publisher’s obligations in this Terms of Service. Except as
specifically allowed in this Section, AddThis Technology may not be modified, reproduced, republished, posted, displayed, performed, transmitted,
sold, offered for sale, or redistributed in any way without Oracle’s prior written permission and the prior written permission of its
8. ADDTHIS TRADEMARKS. ADDTHIS® is a registered trademark in the United States. Other AddThis graphics, logos, designs, page headers,
button icons, and toolbars appearing on the Site or the Services may be trademarks in the United States and other countries (collectively, with
the registered trademarks, the "AddThis Marks"). All other logos and trademarks are trademarks of their respective owners. Publisher is not
authorized to use any AddThis Marks without the prior written permission of Oracle. Ownership of all AddThis Marks and the goodwill associated
therewith remains with Oracle. Oracle hereby grants Publisher a non-exclusive right and license to display any AddThis Marks but solely as
incorporated into, and subject to the restrictions of use associated with, the Downloadable Code and AddThis Tools licensed in Section 7.
Except for this limited license, Publisher is not authorized to use any AddThis Marks.
9. FEEDBACK. In the event that Publisher provides Oracle with any ideas, thoughts, criticisms, suggested improvements or other feedback
related to the Site, AddThis Technology or the Services, (collectively "Feedback"), Publisher agrees that Oracle may use the Feedback to modify
the Oracle products, technology and services and that Publisher will not be due any compensation, including any royalty related to the product,
technology or service that incorporates the Feedback. Publisher grants to Oracle a worldwide, royalty-free, fully paid, perpetual, irrevocable
license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit
the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same.
10. INTERACTIVE FORUMS. The Site may contain forums that allow Publishers and other registered users to interact with Oracle and each
other ("Forums"). Publisher is solely responsible for any content that Publisher posts to a Forum and the provisions of this Terns of Service
apply. Oracle reserves the right, to alter, edit, or remove a post on the Forums if it does not meet the standards established in this Terms of
Service or for any reason Oracle deems appropriate. Oracle does not undertake any obligation, or assume any liability, relating to any Forum
posts or activities of other users on the Site. Publisher agrees that (i) Oracle is not in any manner responsible for posts made on the Forum
by the Publisher, and (ii) Oracle does not guarantee the accuracy, integrity or quality of the Forum content, By posting to the Forum, Publisher
grants to Oracle a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform,
display, import, sell, offer for sale, make, have made and otherwise exploit the content in any form, media, or technology, whether now known
or hereafter developed, and to allow others to do the same.
11. DATA COLLECTION, RIGHTS AND PUBLISHER PRIVACY POLICIES.
- Oracle uses the following types of Cookies:
In addition, Oracle may synchronize anonymous or pseudonymous identifiers (e.g., Cookies) collected above with those of third parties (including cross-device identifiers). Oracle does not retain or provide PI that directly identifies an individual for use in any Audience Segment or other Data Products.
Publisher compliance with Rules.
- Analytics Cookies - Oracle places an analytics Cookie on the End User’s browser that helps Oracle provide insights to Publishers on End User activities on a Publisher Site, including how frequently End User’s device has visited or how the End User’s device has interacted with the Publisher Site.
- Market Research Cookies - Oracle may also place a market research Cookie on End User’s browser, or enable one of Oracle’s partners to place a Cookie. Market research Cookies are similar to analytics Cookies in that they count how frequently an End User has visited a Publisher Site, but these Cookies also enable the evaluation of the success of particular marketing programs by collecting aggregate data across multiple websites.
Publisher will comply with all Rules applicable to Publisher’s use of the Services and its collection and sharing of Publisher Data with Oracle for the purposes specified herein. The Publisher will obtain all necessary authorizations and End User consents, and provide any notices required by the Rules for the provision of data to Oracle or use of the Services, including without limitation any required opt-in consents for permitted sensitive personal data or geo-location data.
Opt-out Requirement for Publisher Sites.
include a link to the DAA opt-out program (currently available at http://www.aboutads.info/choices/)
or the NAI opt out program (currently available at http://www.networkadvertising.org/choices/);
(2) for EU/EEA properties, insert a link to the EDAA opt-out program (currently available at http://www.youronlinechoices.eu/); or
consents required by the Rules for mobile devices, and include a link to the AppChoices program for opting-out (currently available at
Adherence to Privacy Standards. Publisher will not (i) use the AddThis Technology or the Services for the purposes of making decisions about an End User’s eligibility for employment, health care, credit or insurance, or for making decisions solely by automatic means where the decision has a significant effect on the End User, or in any way that does or can be used to discriminate against any person or promote bigotry, racism or harm, (ii) provide to Oracle any data that falls under any of the sensitive data definitions contained in the Rules, as they may be revised from time to time; or (iii) provide to Oracle any data collected from websites directed to children under the age of 13 or from website users whose age Publisher knows to be under 13. Oracle may at its sole discretion decline to receive Publisher Data.
Transfers of Personal Data. Publisher Data may be transferred on a global basis. To the extent that the provision of the Services involves any transfers of PI (i) subject to data transfer restrictions or requirements under Directive 95/46/EC or any successor legislation; (ii) to countries, jurisdictions or recipients outside the EEA or Switzerland not recognized by the European Commission as ensuring an adequate level of protection pursuant to Directive 95/46/EC or any successor legislation; and (iii) not otherwise subject to an approved transfer mechanism that provides an adequate level of protection pursuant to Directive 95/46/EC or any successor legislation, such transfers between Oracle and Publisher are made subject to the terms of the EU Standard Contractual Clauses for controller to controller (“Clauses”), as entered into between Oracle (acting in its own name and in the name and on behalf of its affiliates) and Publisher (acting in Publisher’s own name and in the name and on behalf of Publisher’s affiliates). Oracle and Publisher agree that incorporation of the Clauses into this Terms of Service shall act as a legally-binding execution of the Clauses.
No PI that Directly Identifies an Individual. Unless otherwise expressly permitted in these Terms of Service, Publisher will not provide Oracle with, and will not associate, or attempt to associate, AddThis data with, any PI that directly identifies an individual (including, without limitation, an individual’s name, email address, government assigned identifier, telephone number, health information and payment card information). Publisher will not derive, or attempt to derive, PI that directly identifies an individual from any AddThis Technology or the Services (including without limitation configuring or otherwise causing any Cookie or other technology to capture or transmit any such PI to Oracle). Publisher will promptly notify Oracle if Publisher discovers that it has passed any PI that directly identifies an individual to Oracle.
12. MODIFICATIONS TO THE SITE OR SERVICES. Oracle reserves the right to modify or discontinue the Site or the Services with or without
notice to Publisher. Oracle will not be liable to Publisher or any third party if Oracle should exercise its right to modify or discontinue the
Site and/or the Services. If Publisher objects to any such changes, Publishers sole recourse will be to cease to access to the Site or the Services.
Publisher’s continued use of the Site or the Services following changes to the Site or the Services represents Publisher’s acceptance of those changes.
13. CONFIDENTIAL INFORMATION.
- The parties acknowledge and agree that each may have access to, or become acquainted with, Confidential Information of the other party (“Confidential Information”). Confidential Information shall be limited to the terms under this Terms of Service, Services, Data Products, Downloadable Code and AddThis Technology, and all information clearly identified as confidential at the time of disclosure. The parties further agree that, subject to the rights and licenses granted herein, each party’s Confidential Information shall include such party’s intellectual property and all non-public information, including any customer, customer prospect, marketing, marketing and/or strategic plans or information provided by such party to the other party in the performance of the services under this Terms of Service.
- Each party agrees as follows: (i) to use the Confidential Information of the other party only for the purposes described herein; (ii) that the party receiving Confidential Information from the other party will not reproduce such Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as required in performance of a party’s obligations under this Terms of Service, neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its Personnel, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Terms of Service; and (v) to return or destroy all Confidential Information of the other party in its possession upon termination or expiration of this Terms of Service or upon the disclosing party’s written request. The receiving party shall, upon disclosing party’s request, certify that all Confidential Information has either been returned to the disclosing party or destroyed subject to applicable local, state, national and foreign laws, treaties and regulations.
- The receiving party will not be obligated under this Section with respect to information that: (i) is or has become readily publicly available through no act or omission of the other party or its employees or agents; (ii) is received from a third party lawfully in possession of such information and the receiving party has no knowledge of any disclosure restrictions on such third party to disclose such information; (iii) is disclosed to a third party by the disclosing party without restriction on disclosure (iv) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (v) was independently developed by employees or consultants of the receiving party without reliance on, or reference to such Confidential Information.
- Except as otherwise provided in this Terms of Service, neither party will issue a press release or make any public statement regarding this Terms of Service and/or the other party without the written consent of the other party.
14. PUBLISHER LOGOS. Publisher grants to Oracle a non-exclusive license in the United States to use Publisher’s name and logo (including
references to Publisher in Oracle’s sales presentations) for promotion of the AddThis Platform and the Services including Publisher’s use thereof,
subject to Publisher’s trademark and usage guidelines (if any) and so long as any use of such name, logo and any accompanying descriptions of
Publisher’s use of the Services are first provided to and approved by Publisher, such approval not to be unreasonably withheld or delayed.
15. DISCLAIMERS. THE SITE AND SERVICES AS WELL AS ALL SOFTWARE, MATERIALS, AND TECHNOLOGY USED TO PROVIDE ANY OF THE FOREGOING, ARE PROVIDED
ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ORACLE, ITS OFFICERS, DIRECTORS,
AGENTS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, TITLE, QUIET ENJOYMENT, UN-INTERRUPTION, AND/OR SYSTEM INTEGRATION.
ORACLE, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES MAKE NO WARRANTY ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, OR TIMELINESS OF THE
SITE OR SERVICES, OR THAT PROBLEMS WITH THE FOREGOING WILL BE CORRECTED, OR THAT THE SITE OR SERVICES ARE FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS,
OR THAT THEY WILL BE UNINTERRUPTED OR ERROR FREE.
16. LIMITATIONS OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES
OR LIKE DAMAGES, INCLUDING, LOST PROFITS, GOODWILL, LOST OPPORTUNITIES AND INTANGIBLE LOSSES, ARISING IN CONNECTION WITH ADDTHIS.COM, THE SERVICES
OR THIS TERMS OF SERVICE. THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE NATURE OF ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR
ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT ORACLE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS
IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS TERMS OF SERVICE HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE
LIABILITY OF ORACLE TO PUBLISHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION
SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT OF ALL FEES PAID TO ORACLE BY PUBLISHER UNDER
THIS TERMS OF SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY OR (B) ONE THOUSAND DOLLARS
17. FORCE MAJEURE. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL EITHER PARTY (INCLUDING ORACLE’S LICENSORS) BE HELD LIABLE
FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR OTHER SIMILAR CAUSES BEYOND SUCH PARTY’S
CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES,
ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS,
EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES, PROVIDED
THAT SUCH PARTY GIVES PROMPT WRITTEN NOTICE OF SUCH CONDITION AND RESUMES ITS PERFORMANCE AS SOON AS POSSIBLE, AND PROVIDED FURTHER THAT THE OTHER
PARTY MAY TERMINATE THIS TERMS OF SERVICE IF SUCH CONDITION CONTINUES FOR A PERIOD OF NINETY (90) DAYS.
- Indemnification by Publisher. Publisher will defend at its own expense, from any claim, suit or action against Oracle brought by a third party (each, a “Claim” and collectively, the “Claims”) to the extent that such Claim is based on: (i) any Publisher Indemnity Responsibilities; (ii) Publisher’s use of the Site, the AddThis Technology or the Services not in conformance with this Terms of Service, including without limitation any use or modification of the Downloadable Code, (ii) Publisher’s violation of this Terms of Service, (iv) Publisher’s violation of any Rules or rights of any other person or entity, or (v) any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by Publisher into the Site, the AddThis Technology or the Services.
- Procedures. A party seeking indemnification (the “Indemnified Party”) shall promptly provide written notice of the Claim to the party responsible for indemnification (the “Indemnifying Party”). Failure to timely provide such notice shall not diminish the Indemnifying Party’s indemnification obligation except to the extent the Indemnifying Party’s ability to defend an applicable Claim is materially prejudiced by such failure or delay. The Indemnified Party shall provide the Indemnifying Party with such information and cooperation as the Indemnifying Party may reasonably request at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall have (i) sole control of the defense and settlement of any Claim and (ii) no obligation to indemnify the Indemnified Party under any settlement made without the Indemnifying Party’s written consent. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim against the Indemnified Party unless such settlement completely and forever releases the Indemnified Party with respect thereto or unless the Indemnified Party provides its prior written consent to such settlement. In any Claim or action for which the Indemnifying Party provides defense on behalf of the Indemnified Party, the Indemnified Party may participate in such defense at its own expense by counsel of its choice.
- Infringement Claims. Upon the occurrence of a Claim for which indemnity is or may be due, or in the event that Oracle believes that such a Claim is likely, Oracle may, at its option (i) appropriately modify the Services so that they become non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this Terms of Service on written notice to Publisher. Publisher agrees that Oracle’s performance of its obligations under this Section constitute Publisher’s exclusive remedy, and Oracle’s sole obligation, with respect to a third party infringement claim.
- Notices. Any notice or other communication required or permitted under this Terms of Service shall be in writing and will be deemed to have been duly given if delivered personally, mailed by first-class, email, registered or certified U.S. mail with the required pre-paid postage and return receipt requested, or by a recognized courier service, shipment charges pre-paid, properly at its address specified in the opening paragraph of the Terms of Service. In the case of notice to Oracle such physical notice shall be sent to: Oracle America, Inc., 500 Oracle Parkway Redwood Shores, CA 94065, Attention: General Counsel, Legal Department. Either party may from time to time change the individual to receive notices or its address by giving the other party notice of the change in accordance with this Section.
- Applicable Law. This Terms of Service is governed by the substantive and procedural laws of the State of California and Publisher and Oracle agree to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco or Santa Clara counties in California in any dispute arising out of or relating to this Terms of Service. The Uniform Computer Information Transactions Act does not apply to this Terms of Service or to orders placed or services provided under it.
- Assignment. Publisher may not assign or delegate its rights or obligations under this Terms of Service, in whole or in part, whether by operation of law or otherwise, without the prior written consent of Oracle (not to be unreasonably withheld or delayed). Oracle shall have the right to assign this Terms of Service to an affiliate or any successor to its business or assets to which this Terms of Service relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.
- Amendment; Waiver. Oracle may change the terms of this Terms of Service from time to time on a going-forward basis. Oracle will notify Publisher of any such material changes by posting notice of the changes on the Site, and/or, in Oracle’s sole discretion, by email. Any such modifications become effective upon the earlier to occur of (i) Publisher’s acknowledgement of such modifications; or (ii) Publisher’s continued access to and/or use of the Site or the Services after Oracle posts notice of such modifications. It is Publisher’s sole responsibility to check the Site from time to time to view any such changes to the terms in this Terms of Service. If Publisher does not agree to any changes, if and when such changes may be made to this Terms of Service, Publisher must cease access to the Site and use of the Services. No waiver under this Terms of Service shall be valid or binding against Oracle unless set forth in writing and duly executed by Oracle. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of Oracle in any other respect or at any other time. Any delay or forbearance by Oracle in exercising any right hereunder shall not be deemed a waiver of that right.
- Electronic Communications. Oracle can only give Publisher the benefits of the Services by conducting business through the Internet, and therefore Oracle needs Publisher to consent to Oracle’s giving Publisher Communications (as hereinafter defined) electronically. This Section informs Publisher of Publisher’s rights when receiving Communications from Oracle electronically. For contractual purposes, Publisher (i) consents to receive Communications from Oracle in an electronic form; and (ii) agrees that all terms and conditions, agreements, notices, documents, disclosures, and other communications ("Communications") that Oracle provides to Publisher electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing. Publisher’s consent to receive Communications and do business electronically, and Oracle’s agreement to do so, applies to all of Publisher’s interactions and transactions with Oracle related to this Terms of Service. The foregoing does not affect Publisher’s non-waivable rights. Publisher may also receive a copy of this Terms of Service by accessing the Site. Publisher may withdraw its consent to receive Communications electronically by contacting Oracle in the manner described below. If Publisher withdraws its consent, from that time forward, Publisher must stop using the Site and the Services. The withdrawal of Publisher consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between the parties prior to the time of Publisher’s withdraw of its consent. Publisher should keep Oracle informed of any changes in Publisher’s email or mailing address so that Publisher can continue to receive all Communications without interruption.
- Severability. If any provision of this Terms of Service is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Terms of Service shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Terms of Service invalid or unenforceable whatsoever.
- No Third Party Beneficiaries. The parties acknowledge that the representations, warranties and covenants set forth in this Terms of Service are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Terms of Service.
- Entire Terms of Service. This Terms of Service sets forth the entire agreement and understanding between Oracle and Publisher with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof, and neither of the parties shall be bound by any conditions, inducements or representations other than as expressly provided for herein.
- Construction. When a reference is made in this Terms of Service to Sections, such reference shall be to a Section of this Terms of Service unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Terms of Service, they shall be deemed to be followed by the words “without limitation” whether or not actually followed by such words. References to “or” shall be read, interpreted and construed if the context permits as “and/or”. For purposes of this Terms of Service, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders.