Terms of Service
Last Updated: March 24, 2020
These terms of service (“Terms”) are made and entered by and between Apester and Publisher (as defined in the attached Cover Page), each a “party” and collectively as the “parties”.
These Terms, together with the Cover Page executed between the parties incorporating these Terms and the Data Processing Agreement available at: https://apester.com/dpa/ (collectively, the “Agreement“) govern the relationship between the parties. Capitalized terms not defined under these Terms or the Agreement shall have the same meaning ascribed to them in attached Cover Page.
Subject to and in consideration of the mutual promises, conditions, and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Scope of Agreement
Apester is developer and owner of an online platform, enabling the producing and production of interactive content to be placed on the Publisher Inventory through the Apester’s Interactive Units (“Apester Platform“). Apester may include Ads within the Interactive Units, as agreed between the parties and subject to the terms of the Cover Page, for the purpose of monetizing the Inventory. The Publisher agrees and acknowledges that the frequency, placement and timing of the Ads are subject to Apester’s sole discretion.
2. License and Restrictions
Subject to the terms and conditions herein, Apester grants Publisher with a revocable, limited, non-exclusive, non-transferable and non-sub-licensable license, during the term of this Agreement, to use the Apester Platform and embed the Interactive Units solely within the Approved inventory (“License”). Publisher agrees and undertakes that it will not, either by itself or by authorizing or encouraging others to do so, directly or indirectly: (i) modify, change, edit, amend, truncate, alter, bypass or reorder any aspect of the Apester Platform or Interactive Units; (ii) place the Interactive Units in an iFrame or alter the appearance of the Interactive Units by placing it in a container or otherwise adding Publisher’s own code overriding Apester’s code on the Apester Platform or Interactive Units; (iii) generate clicks or generate page views, that Apester believes, in its sole discretion, are made through any automated, deceptive, fraudulent or other means; or (iv) copy, crawl, index, cache or store any information derived by Apester. Failure to comply with the provisions set forth above may result herein (at Apester’s sole discretion) in the termination or suspension of the License and Agreement.
Furthermore, any content uploaded by the Publisher to the Interactive Units (including any images, videos, graphics, etc.) or otherwise made available through the Platform or Services by the Publisher, and even if such content was obtained through third party sources or database offered by Apester, shall be in compliance with applicable laws, and specifically shall not breach any third party’s intellectual property rights or copyrights. The Publisher acknowledge that use of certain content may require an applicable license to be obtained by the Publisher and it is Publisher’s sole responsibility to determine which license is needed, and to comply with any third party’s terms or requirements for the use of such content. It is hereby clarified that the use of content through the Services might be considered as commercial use and accordingly, will require an applicable license. The above shall not be considered as legal or professional advice on behalf of Apester.
3. Intellectual Property Rights
The Intellectual Property Rights and all other rights, title and interest of any nature in and to Apester Platform, Interactive Units, content created through the Apester Platform, or any software in connection thereof (including all modifications, enhancements, upgrades, customizations and derivative works) are and shall remain the exclusive property of Apester and its licensors. For the purpose of this Agreement “Intellectual Property Rights” shall mean all intellectual property rights of every kind and description, including without limitation rights in or to trademarks and service marks (whether or not registered), trade names and other designations of source of origin, together with all goodwill related to the foregoing, rights in or to copyrights, whether or not registered, rights in or to trade secrets and confidential information, including without limitation know-how, technology methods, ideas and inventions, rights in software and computer code (whether in source code, object code or any other form) and all applications and registrations of any of the foregoing. The Publisher will only obtain the License and reserves all rights with respect to the Publisher Inventory. Notwithstanding the above, the Publisher hereby grants Apester the right to use, solely during the Term, the Publisher content, name and logo within Apester marketing materials. Apester and its licensors reserve any and all rights not expressly granted in this Agreement. The provisions of this section shall remain in full force and effect after termination or expiration of this Agreement for whatever reason.
4. Representations and Warranties
Each party represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; (c) the execution of the Agreement or the performance by it of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject; and (d) it shall comply with applicable laws, regulations and industry best standards.
Apester represent and warrant that it will provide the services: (a) in a timely and professional manner, consistent with applicable industry standards; (b) in conformance with that level of care and skill exercised by other professionals in similar circumstances but in any event no less than reasonable care and skill; and (c) in compliance with all applicable laws and regulations. Except as otherwise expressly stated hereunder, AND TO the maximum extent permitted by applicable law, the APESTER platform, CONTENT AND interactive units or any related documentation are provided on an “as is” and “as available” basis without warranty of any kind. Apester disclaims all warranties, either express or implied, and MAKES NO REPRESENTATION NOR DOES IT EXTENDS ANY WARRANTY OF ANY KIND, WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING OUT OF PRIOR COURSE OF DEALING AND USAGE OF TRADE.
6. Payment and Fees
For the purpose of this Agreement, “Confidential Information” shall mean any non-public, proprietary, confidential or trade secret information of a party that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, client list, developments, business partners or other information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“) either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information shall not include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development or (iv) required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a Protective Order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality. During the term of this Agreement and for a period of one (1) years thereafter, each party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. Each party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, during the term of this Agreement and for a period of one (1) year thereafter to prevent the disclosure of the other party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section. This Confidentiality section shall survive any termination or expiration of this Agreement as set forth herein.
8. Privacy and Data Protection
9. Term and Termination
10. Limitation of Liability
12. Governing Law and Jurisdiction
Additional Acts. Each Party agrees to perform such additional acts and to execute and deliver such documents as may be necessary to carry out the terms and conditions of this Agreement.
Amendments. Only a writing signed by both parties may amend the Cover Page, notwithstanding the above, the Terms and DPA may be revised by time to time upon Apster’s sole discretion. Any material revisions shall be set forth following written notice to Publisher.
Assignment. This Agreement may not be assigned or transferred by either party without the prior written notice of the other party. Any purported assignment of this Agreement made without such other party’s prior written notice shall be void and without legal effect.
Force Majeure. Neither party shall be liable for any delay or failure to perform if and to the extent that such delay or failure to perform is caused or otherwise brought about by circumstances beyond the non-performing Party’s reasonable control, including strikes, lockouts, labor troubles, restrictive government or judicial orders or decrees, riots, insurrection, war, terrorism, Acts of God or inclement weather, which the non-performing party is unable to prevent by the exercise of reasonable due diligence, and provided that the non-performing party uses its best efforts to overcome any such circumstances and the resultant delays or failures to perform.
Entire Agreement. This Agreement, including all attachments and exhibits, contains the entire agreement of the parties, and there are no other promises or conditions, whether oral or written, applicable with respect to the subject matter of this Agreement.
Severability. Should any one or more of the provisions of this Agreement be determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired by such determination and will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
Waiver. A delay or omission by either party to exercise any right under this Agreement shall not be construed to be a waiver of such right. A waiver by either party of any of the performance provisions of this Agreement or any breach with respect to such performance shall not be construed to be a waiver of any succeeding performance or breach.
Each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, fiduciary or agency relationship between the parties for any purpose. Nothing in the Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Publisher and Apester.