Terms and Conditions

Welcome to the Gecko.me website (the “Site“). This document (T&C) describes the terms and conditions applicable to your access and use of the Site and all use of the services and products available at or through or in connection with the Site (collectively, the “Service”). This T&C sets forth the terms and conditions under which Gecko.me (“Gecko”, “we,” “us,” or “our”) provides you access to the Site and the Service. We may amend this T&C at any time by posting the amended Terms & Conditions on the Site, and you agree that you will be bound by any changes to this T&C. For your convenience, the date of last revision is included at the top of this page. We may make changes to the Site and/or the Service at any time. You understand that we may discontinue or restrict your use of the Site and/or Service for any reason or no reason with or without notice. Your use of the Site AND/OR THE SERVICE, or BY clicking “I ACCEPT” if presented with THIS T&C in a click-through format, signifies that you agree to THIS T&C and constitutes your binding acceptance of THIS T&C, including any modifications that Gecko makes from time to time.

1. Privacy Policy

By clicking “I ACCEPT” or using the Site or the Service, you represent that you have read and consent to our Privacy Policy in addition to this T&C. Gecko may revise the Privacy Policy at any time, and the new versions will be available on the Site. If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the Site and/or Service.

2. Requirements

Before you can use the Service, you must agree to this T&C and the Privacy Policy, which you will be deemed to have done by utilizing the Service. These requirements may change as the Service evolves. You are responsible for any Internet connection fees that you incur when accessing the Service.

3. T&C Updates

Gecko will revise this T&C as the Site and/or Service evolves. By using the Site and/or Service, you agree to the then-current version of this T&C as posted on the Site. If at any point you do not agree to any portion of the then-current version of this T&C, you must immediately stop using the Site and/or Service.

4. Description of Services.

Through the Site you may select from a variety of Services offered as described below. The Services we provide pertain to articles, blog posts, user comments, messages, information, data, graphics, news articles, photographs, images, illustrations, software, audio clips and video clips (“Content”) on the Site, displayed via the Software and accessed by users of your website, and provided by you and promoted through the Services.

4.1. Internal Content Analysis. You may elect to use our Software (as defined in Section 7.1) and Services to provide analysis of the internal content of your registered websites and to recommend and display on such websites links to and displays of relevant Content from your website which may be of interest to your users (“Recommended Content”). While Gecko and its Software endeavors to provide relevant Recommended Content, Gecko makes no representation or warranty regarding the relevance or appropriateness of any Recommended Content.

4.2. Insertion of Promoted Content. You may elect to use our Software and Services to display links on your registered websites to paid third-party Content (“Promoted Content”). If you elect to use the Services and Software to display Promoted Content on your website, you will earn a revenue share from the traffic generated thereby. The revenue share (“Revenue Share”) payable to you will be at least 50% of the net revenues actually received by Gecko in respect of such traffic, as determined by Gecko in its sole discretion. Revenue Share payments shall be made in accordance with Section 13.1.

4.3. Insertion of Exchange Content. You may elect to use our Software and Services to have links to your Content displayed on the websites of other users of our Services in exchange for your agreement to allow us to display or promote other third-party Content on your website (collectively, “Exchange Content”). Gecko makes no representation or warranty or guaranty regarding the traffic which may be generated by your Exchange Content, the relevance of the websites where your Exchange Content may be displayed, the relevance of the third-party Exchange Content displayed on your website, or the frequency in which your Exchange Content will be displayed. This portion of the Service is provided at no charge to you.

5. Termination of Service

Gecko reserves the right to deny service to any person and to reject any Content in Gecko’s sole and absolute discretion for any reason. The Service is offered with the understanding that Gecko may terminate any account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of this T&C. Gecko may stop offering and/or supporting the Service or any portion thereof at any time.

6. Accounts and Security

6.1. Eligibility. By using Gecko services you represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside.

6.2 .Account. To access the Service, you must have an account. You can create an account by completing the registration process on the Site. By registering, you will have the ability to control certain settings for the Service. Depending upon which Services you select, you may be required to supply contact and other information.

6.3. Account Security. Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of the account password. You agree to notify Gecko immediately if you believe that an account password may have been compromised.

6.4. Account Sharing or Transfers. You may not share or transfer any account, except that you may permit your minor child to use an account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your password to anyone else.

6.5.Cancellation by You. You have the right to cancel any account registered to you at any time. You may cancel any account registered to you by following the instructions on the Site.

6.6. Effect of Account Termination or Cancellation. If you voluntarily terminate an account or allow that account to lapse, you may reactivate that account at any time through the account interface on the Site. Accounts terminated by Gecko for any type of abuse, including without limitation a violation of this T&C, may not be reactivated for any reason.

7. Software License

7.1. License Grant. Subject to the terms of this T&C, Gecko hereby grants a limited, non-exclusive, personal, non-sublicensable, non-assignable license to:

(i) download, install and use the Service and any application program interface or any other software code that we may make available to you from time to time provided by Gecko (collectively, the “Software”) to develop, reproduce and distribute promotional capabilities that interoperate with the Site or any other web property owned by Gecko;

(ii) any Gecko end-user documentation, solely when bundled with Service; and

(iii) any upgrades, updates and new versions of the Software and related Services, as further described below. Such license shall include the right to use any Gecko intellectual property rights associated with or related to use of the Software, other matters related to the Service, and the Gecko end user documentation, solely in connection with the use of the Service as described above. The Software may only be used in connection with the Service and in accordance with this T&C and any rules, restrictions or documentation set forth by Gecko from time to time.

7.2.Third Party Software and Services. The Software may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements (including, without limitation, terms of use and terms of service posted on third party websites), and you agree to look solely to the applicable third party and not to Gecko to enforce any of your rights in relation thereto. As between you and Gecko, all modifications or enhancements to the Software and Service remain the sole property of Gecko. You understand that Gecko, in its sole discretion, may at any time for any reason suspend or terminate any license hereunder and disable any Software you may already have accessed or installed without prior notice. Gecko reserves the right to add or remove features or functions to the Software at any time in its sole discretion. You acknowledge and agree that Gecko has no obligation to make available to you any subsequent versions of its software applications.

7.3. Proprietary Rights. As between you and Gecko, the Service, the Software, all data and information generated thereby and all intellectual property rights in and to the Software are and shall at all times remain the sole and exclusive property of Gecko and are protected by applicable intellectual property laws and treaties. All data and other information related to the Site or collected by way of the Service on any website shall be the sole property of Gecko. You acknowledge that you do not acquire any ownership rights in or to the Service or such data.

7.4 .End-User Licensing. You agree that for each of your websites and/or software product(s) that use the rights granted herein, such website’s terms and conditions will include terms to ensure that the Service, the Software and any data and other information generated thereby shall be at least as protected as:

(i) your own proprietary software applications, and (ii) such materials are protected by these T&C. Additionally, the privacy policy of the applicable website and/or software product(s) should explain that the data and other information generated by the Software and Services is routed to a third party who owns such data, but such routing does not include any personally identifiable information.

8. Restrictions and Conditions of Use

8.1. Use of Site and Service. As a condition of use, you acknowledge and agree that you may not use the Service for any purpose not reasonably intended by Gecko. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, software or services obtained from the Site. Gecko reserves the right to add or remove information, Content or Services from the Site at any time at its sole discretion.

8.2. No Violation of Laws. You agree that you will not, in connection with your use of the Site, Software or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Software, Site and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).

8.3. Software License Restrictions. Notwithstanding anything to the contrary, you may not:

(i) remove any proprietary notices from the Service or any copy of the Software;

(ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Software or the Service;

(iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Software or Service, including, without limitation, through sublicense, to any other entity without the prior written consent of Gecko; or

(iv) make any false, misleading or deceptive statement or representation regarding Gecko and/or the Software or Service.

8.4. Misuse of Site and/or Service. You may not connect to or use the Site and/or Service in any way not expressly permitted by this T&C. Without limiting the foregoing, you agree that you will not:

(a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or Service or otherwise attempt to disrupt the Site and/or Service or any other person’s use of the Site and/or Service;

(b) attempt to gain unauthorized access to the Site, Service, accounts registered to other users, or the computer systems or networks connected to the Site and/or Service;

(d) use the Site and/or Service to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Gecko user;

(e) use the Service to submit stories or comments linking to affiliate programs, multi-level marketing schemes, sites/blogs repurposing existing stories (source hops), or off-topic content; or

(f) use the Service with the intention of artificially inflating, deflating or altering the Service, including by way of creating separate user accounts for the purpose of artificially altering Gecko ‘s services; artificially inflating clicks on Promoted Content or participating in any other organized effort that in any way artificially alters the results of the Service. Furthermore, you may not use the Site or Service to develop, generate, transmit or store information, including any Content that, or use the Service on any website, that:

(i) is defamatory, harmful, abusive, obscene or hateful;

(ii) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site and/or Service;

(iii) performs any unsolicited commercial communication not permitted by applicable law;

(iv) constitutes harassment or a violation of privacy or threatens other people or groups of people;

(v) is harmful to children in any manner;

(vi) violates any applicable law, regulation or ordinance;

(vii) makes any false, misleading or deceptive statement or representation regarding Gecko and/or the Software or Service;

(viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias);

(ix) displays adult, obscene, pornographic, libelous, infringing, abusive or defamatory content;

(x) participates in, or encourages participation in, illegal activities;

(xi) promotes hate or discrimination; or

(xii) facilitates the sale of firearms or illegal drugs. Gecko may remove any Content from the Site and Service for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), at any time.

8.5. No Commercial Uses. Except as provided in this T&C, you agree that you will not use the Software, the Site or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Software, the Site or Service.

8.6. No Data Mining or Harmful Code. You agree that you will not

(a) obtain or attempt to obtain any information from the Service, including without limitation email information of other account holders or other Software data;

(b) intercept, examine or otherwise observe any proprietary communications protocol used by the Software or the Service, whether through the use of a network analyzer, packet sniffer or other device; or

(c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Software, the Site or the Service.

9. Links

9.1. Links from the Site and Services. The Site may contain, and Services may generate, links to websites operated by other parties, including Promotional Content, Exchange Content and other user generated Content. The use of these websites is at your own risk. The linked websites are not under the control of Gecko, and Gecko is not responsible for the content available on the other websites. Such links do not imply Gecko’s endorsement of information or material on any other website and Gecko disclaims all liability with regard to your access to and use of such linked websites.

9.2. Links to the Site. Unless otherwise set forth in a written agreement between you and Gecko, you must adhere to Gecko’s linking policy as follows:

(i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Gecko’s and/or its licensors’ names and trademarks,

(ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Gecko,

(iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site, and

(iv) Gecko reserves the right to revoke its consent to the link at any time and in its sole discretion.

10. Representations and Warranties

You represent and warrant to Gecko that:

(a) you are the owner (or is otherwise the authorized licensee) of the copyright or other intellectual property rights in any Content provided to Gecko hereunder, and have the right to deliver to, and to authorize Gecko to, display, perform, distribute and exploit such Content in the manner contemplated by this T&C without additional fee or payment whatsoever to any third party,

(b) you shall not impersonate any person or entity or otherwise misrepresent its affiliation with a person or entity; and

11. Intellectual Property

11.1. Trademarks. Gecko hereby grants you a personal, limited, non-exclusive, non-transferable, fully-paid license to use the marks, graphics, logos, designs, page headers, button icons, scripts, and service names comprise registered and unregistered trademarks, service marks and trade dress of Gecko in the U.S. and/or other countries (the “Gecko Marks”) in conjunction with your use of the Software or the Service on any pages of your websites or affiliate websites that feature any aspect of the Service. You may publish blog posts on your blog or affiliate blogs that include the use of Gecko Marks at any time without additional authorization by Gecko, provided that you make reasonable efforts to send the blog post to Gecko prior to or concurrent with publishing thereof. Nothing in this Agreement grants you ownership or any rights in or to use the Gecko Marks, except in accordance with this license. Under no circumstances may you disparage or otherwise abuse the Gecko Marks, nor violate any terms of these T&C. The rights granted to you in this license will terminate upon any termination or expiration of this T&C and you will no longer make any use of any Gecko Marks.

11.2. Copyright. The Site, Service and Software and the content made available through the Site, Service and Software are protected by U.S. and international copyright laws. Except for your use of the content in connection with the Service to which we have the appropriate licensing rights or as authorized in this T&C, you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Site, Service or Software, or individual sections of the content, design or layout of the Site without Gecko’s express prior written permission.

11.3. Copyright Agent. Gecko respects the intellectual property rights of others, and requires that the people who use the Site and the Service do the same. Gecko maintains a policy of termination in appropriate circumstances of users who use the Site and/or Service for repeat infringements. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent [email protected], designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:

• Your address, telephone number, and email address;

• A description of the copyrighted work that you claim has been infringed;

• A description of where the alleged infringing material is located;

• A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and

• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

12. Submitted Content

Gecko does not claim ownership of any Content you make available through the Service. At Gecko’s sole discretion, such Content may be included in the Service in whole or in part or in a modified form. With respect to such Content you submit or make available for inclusion through the Service and your registered and unregistered trademarks, service marks, trade dress, graphics or logos (“Licensed Marks”), you grant Gecko a perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully paid-up and non-exclusive license to use, copy, distribute, publicly perform, display, modify, create derivative works, and sublicense such materials or any part of such materials in any of the following:

(i) on the Site or any Gecko blog, newsletter or other communication or business development, sales or press release materials,

(ii) as any part of the Service;

(iii) on any third-party website in connection with the Service, including but not limited to, the display of your Exchange Content on third-party websites, and

(iv) in any other reasonable manner that you might expect Gecko to use such Content and Licensed Marks. You hereby represent, warrant and covenant that any Content you provide does not include anything to which you do not have the full right to grant the license specified in this Section 12. If supplied by you, you shall supply Content to us in such formats and as otherwise consistent with our current and prevailing specification requirements. You agree that Gecko may use your name, Licensed Marks and logo, or otherwise refer to you, in its marketing materials and web sites as part of a list of its customers, and in any advertisement, news release or other publication of Gecko for the purpose of publicizing these T&C and/or Gecko ‘s relationship with you. Gecko reserves the right to set your campaign live once the funds have been added to your account and content has been approved by our team.

13. Reporting; Terms of Payment

13.1. Revenue Share. If you have elected to display Promoted Content, Gecko will report the results of any Revenue Share earned by you via an online reporting tool that may be accessed by you to review pertinent Revenue Share. You will be paid any Revenue Share based on Gecko’s reporting. Gecko shall make Revenue Share payments within 90 days of the end of the month, provided that Gecko shall not be obligated to make any payment to you until you have earned an aggregate of US$ 500 of unpaid Revenue Share.

13.2. Taxes. You shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with these T&C, except for income taxes.

14. Children

The Site and the Service are not directed toward children under 13 years of age nor does Gecko knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personally identifiable information to Gecko.

15. Disclaimer of Warranties.

You acknowledge that Gecko has no control over, and no duty to take any action regarding: which users gain access to the Service; what effects the Service may have on you, your website or equipment; the accuracy or how you may interpret, rely, or use the Service including without limitation any loss of reputation or loss of traffic on your website or any website of any of your affiliates; or what actions you may take as a result of having been exposed to the Service. You further acknowledge and agree that Gecko shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, or reliance on, any Content, goods or services available on or through any third party website linked or referred to by any portion of the Service. You release Gecko from all liability with respect to the Service, and any Content or data provided or accessed via the Service or through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Gecko makes no representations concerning the Content contained in or accessed via the Service or the Site, including without limitation Promoted Content or Exchange Content, and Gecko will not be responsible or liable for the contents, accuracy, copyright compliance, legality or decency of third party Content or services accessed via the Service or the Site or for your reliance on any of the foregoing. Gecko does not make any representation, warranty or guarantee of the quantity or quality of traffic that you will receive under this Agreement. THE SITE, SOFTWARE AND SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. GECKO MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE, SOFTWARE OR THE SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GECKO SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING

(I) THE NUMBER OF PERSONS WHO WILL VIEW CONTENT, AND

(II) ANY BENEFIT YOU MIGHT OBTAIN FROM DISPLAY OF CONTENT BY GECKO. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND/OR THE SERVICE IS AT YOUR SOLE RISK. GECKO DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Because some countries or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.

16. Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, GECKO , ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE SOFTWARE AND/OR SERVICE, EVEN IF GECKO AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF GECKO OR ANY OF THE RELATED PARTIES EXCEED THE LESSER OF (X) THE TOTAL REVENUE SHARE WE PAID TO YOU DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE, IF SUCH AMOUNT WAS GREATER THAN $0 OR (Y) $100. Because some countries or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Gecko and its affiliates shall be limited to the fullest extent permitted by law.

17. Indemnification

You agree to indemnify, defend and hold Gecko and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees, resulting from or arising out of your use of the Site, the Software and/or the Service or any breach by you of this T&C or any other policies that Gecko may issue for the Site, the Software and/or Service from time to time.

18. Binding Arbitration

18.1. Arbitration Procedures. You and Gecko agree that, except as provided in Section 20.4 below, all disputes, controversies and claims related to this T&C (each a “Claim“), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules“) and under the terms set forth in this T&C. In the event of a conflict between the terms set forth in this Section 20 and the JAMS Rules, the terms in this Section 20 will control and prevail. Except as otherwise set forth in Section 20.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this T&C, (i) you and Gecko may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND GECKO WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

18.2. Limitations. You and Gecko agree that any arbitration shall be limited to the Claim between Gecko and you individually. YOU AND GECKO AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.

18.3. Exceptions to Arbitration. You and Gecko agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Gecko ‘s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.

19. Fraudulent Activity

Gecko shall not be liable to Publisher or any third party for any payment for impressions, page views or click-throughs resulting from activity used to artificially increase impressions, page views or click-throughs (including but not limited to incentivized, automated (e.g., bots and spiders) or otherwise deceptive or artificial means) (“Fraudulent Activity”). Publisher shall take commercially reasonable steps to prevent such Fraudulent Activity by blocking IP addresses and/or Publisher’s user accounts associated with such Fraudulent Activity. Publisher shall cooperate with Gecko in any investigation of possible Fraudulent Activity, including access to Publisher’s access logs and other customer and affiliate information, to the extent that such cooperation by the Publisher is commercially reasonable and not in violation of any agreement between the Publisher and a third party. If Gecko determines the Publisher has knowingly engaged in Fraudulent Activity, then in addition to its other rights and remedies Gecko may terminate this Agreement effective upon notice and withhold payment up to the amount generated through Fraudulent Activity.

20. General

20.1. T&C Revisions. This T&C may only be revised in a writing signed by Gecko, or published by Gecko on the Site.

20.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Gecko as a result of this T&C or your use of the Service or the Software.

20.3. Assignment. Gecko may assign this T&C, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the T&C without Gecko’s prior written consent, and any unauthorized assignment by you shall be null and void.

20.4. Severability. If any part of this T&C is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the T&C shall be given full force and effect.

20.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this T&C, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.

20.6. No Waiver. Our failure to enforce any provision of this T&C shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this T&C shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

20.7. Notices. All notices given by you or required under this T&C shall be in writing and addressed to: Gecko.

20.8 Equitable Remedies. You hereby agree that Gecko would be irreparably damaged if the terms of this T&C were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this T&C, in addition to such other remedies as we may otherwise have available to us under applicable laws.

20.9. Entire Agreement. This T&C, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site, the Software and/or Service.

20.10. The laws of the United Arab Emirates shall govern this Agreement, and the Parties hereby submit to the jurisdiction of the competent courts of Dubai, United Arab Emirates in any matter arising out of or relating to this Agreement.

21. PUBLISHERS – DATA PROTECTION ADDENDUM

21.1. Publisher use of Gecko’s Service is governed also by Gecko’s Privacy Policy and Cookies Policy. By using the Site or our Service, publisher agrees to the terms set forth in those two policies.

21.2. This addendum is part of the agreement (and terms and conditions) that is signed between Gecko and the publisher.

21.3. Role of the parties: Gecko and the publisher both acknowledge and agree that in regards to the processing of Personal Data, both parties are acting “controllers”. Gecko and the publisher share a “joint control” over the end user personal data processed during the usage of Gecko’s content recommendation platform, installed on the publisher website.

21.4. Rights of Data Subject:

a. Publisher working with Gecko shall be responsible for operating in a transparent manner, keeping the end user rights (Data Subject Rights) under the EU Data Protection Laws (GDPR).

b. Gecko uses cookies to perform its services. The type of cookies and purpose are presented in details in Gecko cookies policy. The privacy and cookies policies are available on Gecko’s website and can be reached by the end user, through a click on Gecko’s logo, located at the top (or bottom) of the widget.

c. In a case of a white label agreement between Gecko and the publisher, where no Gecko logo nor any other visible reference to Gecko will be available on the widgets, the publisher shall be own the sole responsibility for disclosing the information to the end user within its privacy policy and 3rd parties list (paragraph 6).

d. Gecko shall maintain Data Subject Rights, providing (1) an Opt Out mechanism, (2) enabling the data subjects to obtain their personal data or (3) erasing it upon their request.

e. Publisher shall be responsible for obtaining the end user consent to receiving personalized content through the use of cookies, by incorporating a consent management platform into his services.

21.5. Personnel:

a. Both parties shall ensure their personnel engaged in the processing of Personal Data are informed of the nature of the Personal Data and that confidentiality obligations are maintained.

b. Both parties shall ensure that access to Personal Data is limited to those personnel performing services in accordance to the agreement.

c. Both parties shall appoint a Data Protection Officer (DPO). Gecko DPO may be reached at [email protected] Publisher should present Gecko with its DPO contact information upon signing this agreement.

d. List of 3rd parties: publisher shall disclose its partnership with Gecko’s to its end users, as part of a comprehensive list of 3rd parties and sub processors it is engaged with. Publisher shall ensure that such list is available on the publisher public website.

21.6. Security:

a. Both parties shall maintain appropriate technical and organizational measures for protecting the security of its physical and virtual assets.

b. Personal Data Breach. Definition: A breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed. In case of a breach, Publisher shall notify Gecko without undue delay upon becoming aware of a Personal Data Breach affecting Gecko’s end user Personal Data, providing sufficient information to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the EU Data Protection Laws.