Affiliate Program Terms & Conditions

BABYLON SOFTWARE Ltd. AFFILIATE AGREEMENT

This Affiliate Agreement (this "Agreement") contains the complete terms and conditions between Babylon Software Ltd. ("Babylon Software"), and the Applicant regarding the application to participate as a Distribution Partner/Affiliate/Advertising Media of Babylon Software (the "Affiliate") (each a "Party" and collectively, the "Parties") for the purpose of promote and distribute Babylon Software's software (the "Products") thru the Affiliate's websites and online resources (the 'Affiliate Sites').

1. RESPONSIBILITIES OF AFFILIATE
Affiliate will use its best efforts and shall devote reasonable amounts of its time, personnel and resources to promote the products by way of displaying in the Affiliate's Sites banner advertisements, button links, text links and other content as determined by Babylon Software (all of which shall relate specifically to the Products), including, but not limited, a URL from which users will be able to download the free version of the Product and/or a direct URL to Babylon Software's Store in which the Products may be purchased (collectively referred to hereinafter as the "Links"). In using the Links, the Affiliate agrees that he will cooperate fully with Babylon Software in order to establish and maintain the Links. In the event that Babylon Software determines that the Affiliate use of any Link is not in compliance with the terms of this Agreement, Babylon Software shall be entitled to take such measures as to render inoperative the Links used by the Affiliate.

The Affiliate may not advertise Babylon Software's websites (or any part thereof) (the "Babylon Software Sites") in any way not approved in advance by Babylon Software including, without limitation, the use of spam e-mails. The Affiliate shall refrain from marketing Babylon Software Sites in any way which might compete with Babylon Software's marketing efforts, unless the Affiliate have received written approval from Babylon Software in such regard. By way of example, the following activities will be considered to be activities, which if undertaken by you, would compete with our own marketing efforts and are prohibited hereunder: (i) the placement of Links on any Internet sites on which Babylon Software places advertisements for the Products and (ii) the promotion of the Products by the Affiliate by way of keyword advertising with Internet search engines. The breach of the foregoing provisions will constitute a breach of this Agreement, and Babylon Software retains full authority to (i) terminate this Agreement immediately in the event of such breach and (ii) retain for its own account any commission arising as a result of such competitive activities that would otherwise have accrued to your benefit.

2. COMMISSIONS
In consideration of the Affiliate's activities, Affiliate shall be entitled to receive the commissions as set forth with the account manager hereto (the "Commissions"). The Commissions set forth with account manager may be increased based on high performance of Affiliate according to Babylon Software's management sole discretion. The Commissions shall be due and payable to The Affiliate within 30 days following the Affiliate's invoice (invoice plus 45). Babylon Software reserves the right to modify the Commissions and/or the payment terms at any time upon reasonable advance notice to the Affiliate.
For the purpose of calculating the Commissions due to the Affiliate hereunder, Babylon Software will manage a cookie tracking protocol, which will track the performance of the Affiliate from the promotion and distribution of the Products and/or Babylon Software Sites point of view. At the beginning of each calendar month and in accordance with the said cookie tracking protocol, Babylon Software shall submit to the Affiliate a detailed report of Commissions due to Babylon Software under the terms of this Agreement for the preceding month, which shall include the number of users and revenue generated by its users, via the Links, which shall be binding upon the parties.
Babylon Software retains the right to review all Commissions for possible Fraud. In any period of time during which Babylon Software reviews Commissions for possible Fraud, which shall not to exceed 180 days, Babylon Software shall have the right to withhold any commission accrued in your favor, and such Commissions shall not be transferred to the Affiliate until such time as the review has been concluded. Any incidence of Fraud on the Affiliate's part constitutes a breach of this Agreement, and Babylon Software retains full authority to terminate this Agreement immediately in the event of such breach. Further, in the event that Babylon Software deems that Fraud has occurred, the Affiliate shall not be entitled to receive any Commissions which have accrued to his benefit as a result of the Fraud. Babylon Software retains the right to set-off from future Commissions payable to the Affiliate any amounts already received by him which can be shown to have been generated by Fraud.

2.1 Any changes in the commission should be communicated by written email to the Affilaite account manager.

3. Obligations Regarding Affiliate Site
The Affiliate will be solely responsible for the technical operation of the Affiliate Sites and the accuracy and appropriateness of materials posted on therein. The Affiliate agrees that the Affiliate Sites will not, in any way, copy or resemble the look and feel of the Babylon Software Sites, nor will you create the impression that any of your Affiliate Sites are Babylon Software Sites. The Affiliate also agrees that none of the Affiliate Sites will contain any content of Babylon Software Sites or any materials which are proprietary to Babylon Software, except (i) with Babylon Software's prior permission, or (ii) the Links.
The Affiliate will not use any unsolicited or spam email to promote Babylon Software Sites and/or the Products and will ensure that the Affiliate Sites and any related marketing materials or communications do not contain any spyware, adware, any other unwanted threats or any kind software or online scripts which violate the legal local and international rules. If the Affiliate Sites or any related marketing materials or communications are found to contain any of the said threats, Babylon Software reserves the right to terminate this Agreement immediately. The Affiliate will not engage in activity that is malicious, fraudulent, deceptive, misleading or unfair to users and will not use any editorial, text, graphic, audiovisual or other content which, without the user's knowledge or consent, re-sets the default or active "Home Page" of any user's browser software or otherwise modifies any privacy, security or other settings of any user's browser software, or that repeatedly asks the user for its consent to do any of the foregoing without such user's explicit request.
In addition, the Affiliate Sites shall not include any content that Babylon Software deems is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable, which by way of example only, might mean that it contains (i) sexually explicit, pornographic or obscene content (whether in text or graphics), (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise), (iii) graphic violence, (iv) politically sensitive or controversial issues or (v) any unlawful behavior or conduct.

The Affiliate will indemnify and hold Babylon Software harmless from all claims, damages, and expenses (including, without limitation, legal fees and expert witness fees) relating to the development, operation, maintenance, and contents of your Affiliate Sites or any materials, products or services linked to therein. The Affiliate hereby acknowledges that his conduct as an Affiliate shall reflect on Babylon Software and has the potential to cause substantial damage to Babylon Software's reputation and goodwill and that you shall at all times consider the goodwill and reputation of Babylon Software and Babylon Software's name.

4. Termination
4.1. Term & Termination
The term of this Agreement shall commence on the date first mentioned above, and will end when terminated by either Party, upon 2-days prior notice, with or without cause, by giving the other Party written notice of termination, where such notice may be served via fax or e-mail.

4.2. Consequences of Termination
Upon termination of this Agreement: (a) each Party shall return to the other Party all property of the other Party in its possession or control (including all Confidential Information, as defined in Section 6) and destroy or permanently delete all material that cannot be returned; (b) the Affiliate will immediately cease use of, and remove from the Affiliate Sites, all Links and Licensed Materials and any other names, marks, symbols, copyrights, logos, designs, or other proprietary designations or properties owned, developed, licensed or created by Babylon Software and/or provided by or on behalf of Babylon Software pursuant to this Agreement or in connection with the promotion and/or distribution of the Products; and (c) all rights granted to Affiliate hereunder will immediately cease. Babylon Software reserves the right to withhold the Affiliate's final payment for a reasonable time to ensure that the correct amount is paid. Upon the termination of this Agreement for any reason and by either Party, The Affiliate shall also immediately destroy or deliver Babylon Software any Confidential Information that is in your possession. Following the termination of this Agreement and the payment of all commissions due at such time of termination by Babylon Software, Babylon Software shall have no obligation to make any further payments of commissions to the Affiliate.
4.3. Survival. Sections 4.2, 4.3 and 5 through 11 shall survive the termination or expiration of this Agreement.

5. Intellectual Property
As between Affiliate and Babylon Software, all Babylon Software Licensed Material (defined below) and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, web sites, and any additional intellectual or other property used by or on behalf of Babylon Software or otherwise related to the Products and/or Babylon Software Sites, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto shall be and remain the sole and exclusive property of Babylon Software. The Affiliate shall be granted by Babylon Software a non-transferable, non-exclusive, revocable license to place the Links on the Affiliate Sites during the term of this Agreement, and solely in connection with the Links and/or Products, to use Babylon Software's logos, trade names, trade marks, service marks and similar identifying material as contained in the Links (collectively, "Licensed Materials"), solely for the purpose of promoting the Products and/or Babylon Software Sites, only after first submitting a sample of such use to Babylon Software and receiving Babylon Software's prior written consent. The Affiliate must not use any Licensed Materials for any purpose whatsoever other than promoting the Products and/or Babylon Software Sites. The Affiliate is not permitted to use the Licensed Materials in any manner that is disparaging or that otherwise portrays Babylon Software or anyone else negatively. Babylon Software reserves all of its intellectual property rights in the Licensed Materials, and may revoke the Affiliate license to use the Licensed Materials at any time by written notice to you, whereupon the Affiliate shall immediately destroy or deliver up to Babylon Software all such materials that are in his possession. The Affiliate acknowledges that, except for the license which may be granted to him in connection hereto, The Affiliate have not acquired and will not acquire any right, interest or title to the Products, Links, and/or the Licensed Materials by reason of this Agreement or the Affiliate's activities hereunder. The aforementioned license shall terminate upon the termination of this Agreement.

6. Confidentiality
Each Party acknowledges and agrees that any and all information associated with the other Party's business and not publicly known, including, but not limited to, the contents of this Agreement, specific trading information, technical processes and formulas, source codes, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs, amounts paid under this Agreements, and other unpublished financial information, business plans and marketing data, is confidential and proprietary information ("Confidential Information"), whether or not marked as confidential or proprietary. Each Party agrees to use the other Party's Confidential Information solely as necessary for performing its obligations hereunder. Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (a) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party's obligations hereunder, who each shall treat such Confidential Information as provided herein; or (b) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement. Confidential Information shall not include any information which is: (i) in the public domain, or is already known by or in the possession of the non-disclosing Party, at the time of disclosure of such information; (ii) is independently developed by the non-disclosing Party without breaching any provisions of this Agreement; or (iii) is thereafter rightly obtained by the non-disclosing Party from a source other than the disclosing Party without breaching any provision of this Agreement.

7. Limitation of Liability
Babylon Software will not be liable for any indirect, special or consequential damages, or any loss of revenue, profits or data arising in connection with this Agreement, even if Babylon Software has been advised of the possibility of such damages. Further, Babylon Software's aggregate liability arising with respect to this Agreement will not exceed the total commissions paid or payable to the Affiliate under this Agreement during the twelve months preceding such claim.

8. Disclaimers of Warranty
Babylon Software makes no express or implied warranties or representations with respect to the Products and/or Babylon Software Sites (including without limitation warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of Babylon Software Sites will be uninterrupted or error-free, and will not be liable for the consequences of any interruptions or errors.

8.1 Babylon Software shall notify the Afiiliate within 24 hours of the time Babylon Software has detected a critical system downtime that cannot be repaired within that time frame. In case of a scheduled maintenance or interruption, the notification should be in advance.

9. Representations and Warranties
The Affiliate hereby represents and warrants the following: (i) the Affiliate has accepted the terms and conditions of this Agreement, which creates legal, valid and binding obligations on him, enforceable against him in accordance with its terms; (ii) such acceptance and the performance by the Affiliate of this Agreement and the consummation by the Affiliate of the transactions contemplated hereby will not conflict with or violate any provision of law, rule, regulation or agreement to which the Affiliate is subject to; and (iii) the Affiliate represents that he has evaluated the laws relating to his activities and obligations hereunder and independently concluded that he can enter this Agreement and fulfill the Affiliate's obligations hereunder without violating any applicable rule of law.

10. Indemnification
The Affiliate hereby agrees to indemnify, defend and hold harmless Babylon Software, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including legal fees and costs) of any nature whatsoever incurred or suffered by Babylon Software (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) the breach of this Agreement by the Affiliate or any representation or warranty made by the Affiliate herein; or (ii) any claim related to the Affiliate Sites.

11. GENERAL PROVISIONS
11.1. Force Majeure If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.

11.2. Independent Contractors The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or Related Entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, brokerage, joint venture, partnership or employer/employee relations between the Parties or to impose any liability attributable to such a relationship upon either Party.

11.3. Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) by e-mail to the Party to which the same is directed; or (b) by facsimile to the respective Facsimile numbers of the Parties.

11.4. No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving Party.

11.5. Entire Agreement. This Agreement, including all Exhibits hereto, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof as set forth herein. Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.

11.7. Assignment. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, assigns and legal representatives. The Affiliate shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without Babylon Software's prior written consent, to be given or withheld in Babylon Software's sole discretion.

11.8. Independent Investigation. The Affiliate acknowledges that he have read this Agreement, have had an opportunity to consult with his own legal advisors if you so desired, and agree to all its terms and conditions. The Affiliate have independently evaluated the desirability of participating in the promotion of the Products and/or Babylon Software Sites and is not relying on any representation, guarantee, or statement other than as set forth in this Agreement.

11.9. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.

11.10 Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of Israel (without giving effect to its conflict of laws) and the competent court in the City of Tel-Aviv Israel shall have an exclusive jurisdiction for any action, suit or proceeding regarding this agreement.