Effective as of August 7, 2017
Apester Ltd. (“Apester” or “Licensor“) makes available the Apester platform which provides functionality for creating, embedding and sharing interactive content on websites and apps offered by online content publishers (the “Platform“). These Terms and Conditions (these “Terms“) govern the implementation and use of the Platform by any Publisher and describe the terms and conditions under which Licensor offers to Publisher or other entities, access to the Platform and/or to any related website, application (mobile or desktop), service on or to which these Terms and Conditions are linked or referenced (the “Services”).
In these Terms, “Publisher” refers to any third party that downloads, implements or makes use of the Platform and/or the Services.
In these Terms, “Publisher Site” refers to any website, application, mobile app or other online presence offered by the Publisher where the Platform can be embedded or used in accordance with the Terms
1. License and Service
Subject to the terms and conditions hereof, Apester (a) provides Publisher with a non-exclusive license during the term of the parties’ engagement to use the Apester Platform and Services and implement the Platform and/or SDK and/or JavaScript® on the Publisher Site and (b) shall allow Publisher to access and use the Platform during the Term on a non-exclusive basis. Apester may also provide the Service by way of cloud-based service, in which case, all references herein to SDK license shall be irrelevant. Publisher shall use the Platform only to display Content (as defined below) on its own Publisher Sites, but shall not use the Platform to display Content on the Internet websites of any third party. Publisher will clearly and conspicuously identify or label all content provided through the Platform (including any recommended or promoted content) in accordance with all applicable laws and regulations.
2. Registration
In order to use the Platform, Publisher will be required to register with Apester. Publisher must provide all information as requested by Apester in the registration process, and Publisher represents and warrants that all such information shall be accurate and complete. Publisher shall keep such information up-to-date. Publisher shall immediately notify Apester if there is a security breach of its account. Publisher is responsible for all uses of its account, including by any unauthorized users.
3. Restrictions
Except as set forth expressly herein, Publisher shall not, and shall not permit any third party, to (a) reverse engineer, decompile or attempt to find the underlying code of, the Platform, Services or the Apester SDK; (b) modify the Platform, Services or the Apester SDK, or circumvent any security or access control measures of the Platform, Services or the Apester SDK; (c) modify, change, interfere with or otherwise abuse any code, iFrame or script related to the Platform, the SDK or otherwise provided or produced throughout the use of the Platform; (d) copy, frame or mirror the Platform, or Services or use the Platform or Services or the Apester SDK to provide service to any third party; (e) use the Platform or Services or the Apester SDK to store or transmit any viruses, worms, time bombs, Trojan horses, or any other harmful or malicious code, files, scripts, agents or programs; (f) engage with hacking or phreaking of any code, program or file, including the Platform, SDK or any portion or derivatives of them; (g) sublicense, distribute, or provide any third party with access to the Platform, Services or the Apester SDK; or (h) use the Platform, Services or the Apester SDK in any manner not permitted under the terms of these Terms. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Publisher shall inform Apester in writing in each instance prior to engaging in the activities set forth above.
Publisher will not in any way be concerned, directly or indirectly, in fraudulent traffic. Fraudulent traffic includes, but is not limited to, using scripts or other devices to artificially inflate traffic counts, encouraging users to click on content or a banner or pop-under via points, inserting material on any page that automatically reloads or forwards to another page without interaction from the visitor of the Publisher Site or on pages not visible to the general public or other reward system, auto-spawning of multiple browsers and automatic redirects.
Publisher is solely responsible for ensuring that any use of the Platform (including, without limitation, any use in the manner contemplated by any Monetization Agreement between Apester and Publisher) is in compliance with any applicable law and does not violate any third party rights.
4. Content
The Platform or Services may allow Publisher to post or upload content to be included in the interactive templates provided as part of the Platform. In these Terms, “Content” includes any material or content that is created, uploaded, transferred, posted or made available by a Publisher through the Platform or Services, including any textual, graphic, visual or audio content. Publisher shall remain at all times solely responsible for its Content. Publisher represents and warrants that no Content infringes the intellectual property rights, privacy rights, moral or other rights or any third party or violates any applicable law. Apester reserves the right, at its sole discretion, to remove (or caused to be removed) any Content if it has good reason to believe, at its sole discretion, that such Content violates these Terms or terminate any account that repeatedly posts Content in violation of these Terms, without prior notice. Apester does not claim ownership of Publisher’s Content. However, by sending any Content Publisher automatically grants Apester a worldwide, non-exclusive, royalty-free, sub licensable and transferable perpetual license of all worldwide rights to use, edit, modify, include, incorporate, adapt, record, perform, display and reproduce such Content including, without limitation, all trademarks associated therewith, in any manner whatsoever, in or out of context, in all languages, in all media now known or hereafter created, including without limitation, for the purpose of improving and/or commercially promoting Apester or the Platform. Publisher will not post or make available any Content that: (a) posts, stores, transmits, offers, or solicits anything that contains, or that it knows contains links to: (i) offensive material (including material promoting or glorifying hate, violence, bigotry, or links to any entity principally dedicated to such causes or items associated with such an entity); (ii) material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening; (iii) pornography (including any obscene material, and anything depicting children in sexually suggestive situations whether or not depicting actual children) or may be harmful to a minor; (iv) any security hole, virus, worm, Trojan horse, or other harmful or disruptive component; (v) anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate; (b) Obtains or solicits another person’s password or other personal information under false pretences; (c) Violates the legal rights of others, including defaming, abuse, stalking or threatening users; (d) Infringes (or results in the infringement of) the intellectual property, moral, publicity or privacy rights of any third party; or (e) Is (or Publisher reasonably believes to be) illegal, fraudulent, or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or Publisher reasonably believes to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material.
5. Third Party Tools, Features and Services
The Platform and the templates provided therein may have 3rd party features, tools, services and/or content available for Publisher’s use (“3rd Party Tools”), as may be added, removed or altered from time to time, at Apester’s sole discretion. Such 3rd Party Tools, may include, without limitation, images, GIFs, videos, animations and other forms of content. Although Apester has the licenses and permissions to make such 3rd Party Tools available via the Platform, the integration and use of such 3rd Party Tools are made at Publisher’s risk and responsibility, and it is highly recommended that before using any of 3rd Party Tools, you will check their own terms and conditions to ensure compliance of your specific type of integration. Such 3rd Party include Giphy (terms and conditions available at: https://giphy.com/terms) and Unsplash (terms and conditions available at https://unsplash.com/terms). For your convenience, Apester will provide an attribution for each of such 3rd Party Tool, and when required by them, will include required credits.
6. Monetization; Commercialization
Apester and Publisher may agree from time to time on manners of monetizing the Platform, such as by delivery of advertisements, promotional material, etc. Any such agreement requires a prior written agreement between the parties (a “Monetization Agreement“).
Under no circumstances may Publisher commercialize the Platform in any way absent a fully executed Monetization Agreement or without otherwise getting Apester’s prior written approval. Such restriction specifically includes (but not limited to) a full restriction on displaying any advertisements or using any Content (as defined in Section 4) in any manner that is for the benefit of any third party, such as Content that is promotional, commercial in any way, or which may refer visitors to websites of others, etc.; all whether or not any such third party specifically pays Publisher or provides Publisher or makes available to Publisher any benefit of whatever sort or kind.
Under no circumstances may Publisher, using the Platform, place any ads without the prior written consent and approval of Apester.
Notwithstanding anything to the contrary herein, Apester may, regardless the existence of Monetization Agreement, from time to time, display ads and/or other promotional content provided by Apester’s 3rd party advertisers on the Platform, in cases where the Platform is used by Publisher for no charge or payment whatsoever. Publisher agrees that in which case, Apester shall have no monetary or other obligation toward Publisher with respect to such promotional content, unless otherwise agreed between Apester and Publisher.
7. Intellectual Property
As between the parties, Apester shall have all right, title and interest in the Platform and Services, and all software that provides the Platform, and all features, templates and content made available by Apester to Publisher through the Platform or Services. Apester does not request feedback regarding the Platform or Services. Notwithstanding the foregoing, if Publisher provides Apester with any feedback regarding the Platform or Services, Apester and its affiliates may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback. Nothing in these Terms shall be interpreted to provide Publisher any rights in the Platform or Services except the limited right to use the Platform or Services subject to the terms and conditions hereof. As between the parties, Publisher owns all rights in its Publisher Sites and any content made available through the Publisher Sites, and any Content provided by Publisher to be made available to third parties through the Platform.
8. Privacy
Publisher at all times shall maintain updated privacy policies on the Publisher Site, such privacy policies shall comply with applicable law and regulations. Publisher’s privacy policy shall clearly explain how Publisher collects, uses, stores and distributes any data collected from end users of the Publisher Site(s). Without limitation, Publisher assumes sole responsibility for providing any notices to users and obtaining any user consents that may be required under applicable privacy, data protection and/or other laws, in order to enable Apester to collect and process information as described in these Terms and Conditions and the Apester Privacy Policy. Without limitation, Publisher is obligated to notify the user of the Publisher Site regarding the use of cookies in accordance with applicable laws, and Publisher shall in particular notify the user that it has implemented the Platform and shall provide a clearly visible hyperlink to Apester’s current privacy policy, which Apester may amend in its sole discretion, the current versions of which is available at this page: http://apester.com/privacy.
The following is suggested language which Publisher may include in Publisher’s privacy policy in order to notify users of Publisher’s use of Apester and Apester’s use of personal information:
“On our website we implement interactive content (including but not limited to: online quizzes, questionnaires, feedback applications or other features) provided to us by Apester Ltd. (“Apester”). If you decide to interact with in any such content, Apester may collect certain information that may qualify as personal information under applicable data protection law. For further information regarding Apester’s collection of data by cookies and the use of collected data, please refer to Apester’s Privacy Policy at: http://apester.com/privacy.”
Publisher is aware of, acknowledges and agrees with Apester’s collection, use and storage of data as set forth in the Apester privacy policy. All data collected via the Platform shall be exclusively owned by Licensor.
9. Limited Warranties; Disclaimers
Each party represents and warrants to the other that: (i) it has all right, power, and authority necessary to enter into these Terms. Nothing in these Terms shall be construed as a promise of any sort of minimum traffic volumes, clicks or usage or any other such commitments by Apester. EXCEPT AS EXPRESSLY SET FORTH HEREIN, PUBLISHER ACCEPTS THE SDK AND THE PLATFORM “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, APESTER MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE SDK OR THE PLATFORM AND DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO OTHER DOCUMENT OR ORAL STATEMENTS MADE BY APESTER OR ITS REPRESENTATIVES SHALL BE DEEMED TO PROVIDE ANY WARRANTY OR REPRESENTATION UNLESS EXPRESSLY SET FORTH HEREIN. APESTER MAKES NO WARRANTIES REGARDING ANY REVENUES, PROFITS, PAGE VIEWS OR OTHER BENEFITS THAT PUBLISHER MAY OBTAIN THROUGH ITS USE OF THE PLATFORM.
10. Indemnification
Publisher shall defend, indemnify and hold harmless Apester (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which Apester may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from or relating to Publisher’s use of the Platform (or Services) or any breach of these Terms by Publisher. Publisher may not settle or compromise such suit without the written consent of Apester. Apester may be represented in any such suit by counsel of its own choosing at its own expense.
11. Limitation of Liability
IN NO EVENT SHALL APESTER (OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, SHAREHOLDERS, ADVISORS AND THIRD PARTY DATA SERVICE PROVIDERS) HAVE ANY LIABILITY FOR ANY DAMAGE (DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES) ARISING OUT OF OR RELATING TO THE SERVICES OR THE ARRANGEMENTS CONTEMPLATED HEREIN, INCLUDING IN RESPECT OF LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR LOST DATA. WITHOUT DEROGATING FROM THE ABOVESAID, IN NO EVENT SHALL THE LIABILITY OF APESTER (OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, SHAREHOLDERS, ADVISORS AND THIRD PARTY DATA SERVICE PROVIDERS) FOR THE SDK OR THE PROVISION OF THE SERVICES OR UNDER ANY PROVISION OF THESE TERMS EXCEED THE AMOUNT OF PAYMENT RECEIVED BY APESTER FROM PUBLISHER IN THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM. Apester shall have no liability for any content provided by any end users of the Publisher Sites or any actions taken by any end users of the Publisher Sites.
12. Term and Termination
These Terms shall be effective as of the date that they are accepted by Publisher and shall continue in effect unless and until terminated by either party with 30 days written notice. Apester may terminate these Terms and Publisher’s right to use the Platform or Services with written notice if it has reason to believe that Publisher is in breach of any provision of these Terms or is using the Platform in an improper, unlawful or illegal manner. Apester may suspend the use of the Platform at any time to the extent necessary to prevent the spread of malware or viruses. Upon any termination or expiration of these Terms, (a) Apester will cease providing the Platform and all service provided through the Platform and (b) Publisher will delete all copies of the SDK and remove all content provided through the Platform from all of Publisher’s Internet web Publisher Sites and apps. Sections 6, 8 – 14 of these Terms shall survive any termination or expiration thereof for any reason.
13. Publicity
Publisher agrees that Apester have the right to reveal the fact that Publisher is using the Platform, including by displaying Publisher’s name and/or logo in Apester’s website and other marketing materials.
14. Force Majeure
Neither party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such party.
15. Changes to Terms
The effective date of these Terms is set forth at the top of this webpage. We reserve the right to modify these Terms. If required under applicable law, we will provide you with written notice of our changes. We will not make changes that have a material retroactive effect unless we are legally required to do so. Your continued use of the Services after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions of or agreements, notices or statements of or about the Terms.
16. Miscellaneous
These Terms represent the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. Apester may make updates, modifications or improvements to the Technology or Service from time to time in its sole discretion. Except as expressly set forth herein, these Terms may not be modified or amended except in a writing executed by both parties. All waivers must be in writing. A waiver of any default hereunder or of any of the terms and conditions of These Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Apester may provide Publisher with notices required hereunder by contacting Publisher at any email address Publisher provided, including in its registration information. Apester may assign its rights or obligations pursuant to These Terms. Publisher agrees not to assign (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control) any rights under These Terms; any attempted assignment shall be null and void. If any part of These Terms shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of These Terms which shall remain in full force and effect. These Terms shall be governed by the laws of the State of Israel, and the competent courts in the city of Tel Aviv/Israel shall have exclusive jurisdiction to hear any disputes arising hereunder. The United Nations Convention for the International Sale of Goods shall not apply. The parties are independent contractors, and nothing in These Terms will be construed to create a partnership, joint venture, agency or other relationship between the parties. Except with respect to payment obligations, neither party will be liable for any failure to perform due to causes beyond the party’s reasonable control. The headings herein and in these Terms are for the convenience of reference only and have no legal effect.
17. Contact
In case you have any comments or questions about our Platform, Services or Terms, please don’t hesitate to contact Apester’s team at support@apester.com.