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Apester Terms and Conditions
Apester Ltd. (“Licensor”) makes available Apester which provides functionality for creating
embedding and sharing interactive content on third party websites (the “Platform”). These Terms and
Conditions (these “Terms”) govern the implementation and use of the Platform in your Internet
website(s) expressly referenced in a separate quotation or agreement executed between the parties (the
“Site”). In these Terms, “Publisher” refers to any third party that downloads, implements or makes use
of the Platform.
1.
License and Service. Subject to the terms and conditions hereof, Apester (a) provides Publisher
with a non-exclusive license during the term of these Terms to use the Apester SDK for implementing
the Platform on the Site and (b) shall allow Publisher to access and use the Platform during the Term on
a non-exclusive basis. Publisher shall use the Platform only to display Content (as defined below) on its
own Sites, but shall not use the Platform to display Content on the Internet websites of any third party.
Publisher will implement the Service in a mutually agreed location and format on each page of the Site.
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 or
the Apester SDK; (b) modify the Platform or the Apester SDK, or circumvent any security or access
control measures of the Platform or the Apester SDK; (c) copy, frame or mirror the Platform or use the
Platform or the Apester SDK to provide service to any third party; (d) use the Platform 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; (e) sublicense, distribute, or provide any third party
with access to the Platform or the Apester SDK; or (f) use the Platform 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.
4.
Revenue & Payment. During the Term, Apester shall make payment to Publisher in accordance
with a separately executed quotation mutually agreed between the parties. If the amount owed to
Publisher is less than US$50, then the amount owed will be accrued until the calendar month in which
the balance of the payments due to Publisher exceeds US$50. Apester shall not deduct or withhold any
amount from amounts otherwise payable hereunder to Publisher except as required by applicable law.
In determining amounts due hereunder, the records of Apester shall be determinative. To the extent
Apester reasonably believes that any activities or operations are fraudulent or invalid, Apester may
withhold payment to Publisher in respect of such activities or operations.
5.
Intellectual Property. As between the parties, Apester shall have all right, title and interest in
the Platform, and all software that provides the Platform, and all templates and content made available
by Apester to Publisher through the Platform. Apester does not request feedback regarding the Platform.
Notwithstanding the foregoing, if Publisher provides Apester with any feedback regarding the Platform,
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 except the limited right to use the Platform
subject to the terms and conditions hereof. As between the parties, Publisher owns all rights in its Sites
and any content made available through the Sites, and any Content provided by Publisher to be made
available to third parties through the Platform.
6.
Content. The Platform may allow Publishers to post or upload content to be included in the
interactive templates provided by the Platform. In these Terms, “Content” includes any material or
content that is uploaded, transferred, posted or made available by a Publisher through the Platform,
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 or moral 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 that 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 your Content. However, by sending any Content you automatically
grant Apester a worldwide, non-exclusive, royalty-free, sublicensable 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 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 pretenses;
(c) Violates the legal rights of others, including defaming, abuse, stalking or threatening users; (e)
Infringes (or results in the infringement of) the intellectual property, moral, publicity or privacy rights
of any third party; or (f) 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.
7.
Privacy. Each of Publisher and Apester shall maintain privacy policies on their Internet websites,
which 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 Site(s). Apester current privacy policy, which it may amend in its sole discretion, is available
at https://editor.qmerce.com/privatepolicy/ Publisher agrees to Apester’s collection, use and storage of
data as set forth in the Apester privacy policy.
8.
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 and perform its obligations hereunder;
(ii) its performance of these Terms, and the other party’s exercise of its rights under these Terms, will
not breach or violate any statutory or contractual obligation by which it may be bound. 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.
9.
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 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.
10.
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 CONSEQUENTIAL, INDIRECT, DIRECT, 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. 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
Sites or any actions taken by any end users of the Sites.
11. 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 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
websites. Sections 3 – 13 of these Terms shall survive any termination or expiration thereof for any
reason.
12. 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 logo in Apester’s website and other
marketing materials.
13. 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.