Terms of Service
These terms of service (“Terms”) are a legally binding and enforceable agreement between Apester Ltd (“Apester”, “we”, ”our”, or “us”) and: (i) users who access and browse our website (“Visitors“); and (ii) users of our platform’s services, which provides functionality for creating, embedding producing and sharing interactive content on websites and apps (“Customer” and “Units”, “Digital Assets” and “Platform” respectively). Visitors and Customers shall be collectively referred to herein as “user/s”, “you” or “your”). Each of Apester and user shall be also referred to as a “party” and collectively as the “parties”.
ACCEPTANCE OF THE TERMS: BY ACCESSING, BROWSING OT OTHERWISE USING OUR PLATFORM AND SERVICES (AS DEFINED BELOW), INCLUDING BY SIGNING UP TO OUR SERVICES, FILLING IN YOUR INFORMATION AND CLICKING “SING UP” (OR ANY SIMILAR LANGUAGE) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS . IF YOU DO NOT AGREE TO ALL OR PART OF THESE TERMS, PLEASE DO NOT BROWSE OUR WEBSITE, CREATE AN ACCOUNT, OR USE THE PLATFORM OR SERVICES IN ANY MANNER.
1. OUR WEBSITE AND CONTENT OFFERED THEREIN
1.1. Our website provides comprehensive information and resources about our business operation and services, and any other content related thereto, including, inter alia, articles, blogs, images, text, logos, button icons, links, etc. In addition, the website provides you with the ability to register to our Services, log-in to your Customer Account, request for a demo as well as other communications means which you can use to contact us, for example, if you have any inquiry or if you wish to become our partner, work with us, join our team, or sign up to our newsletter (collectively the “Content”).
1.2. The Content may further include any information or links to third parties’ websites and resources, not operated or owned by us, as well as examples of how our Customers use our Units. By reviewing, using or otherwise accessing such content, you will be subject to the applicable third party’s terms of service and policies. We have no control over such content, and we do not, nor we are obligated to, monitor them.
1.3. Apester, at its sole discretion, is entitled to edit, modify, correct, amend, update, remove, replace or make any other changes to the website or Content, or discontinue, or cease, temporarily or permanently, the operation of the website or any part therein, without liability to you. The website and Content are provided “as-is” without any warranty and we hereby expressly disclaim any liability in respect of actions or omissions taken or not taken based on any Content provided herein. We make no representation or warranties that the website and Content are or will be available for use in any particular location or at a specific time, that the website will be secured, uninterrupted or error-free, or free of viruses or other harmful components, nor that Content will be accurate or reliable. Any use of our website and Content shall be at your sole responsibility and risk.
1.4. You hereby represent and warrant you will comply with all applicable laws regarding the use of our website and Content. You may not: (i) use the website and Content in unlawful, illegal, fraudulent or inappropriate manner; (ii) circumvent, disable or otherwise interfere with security-related features of the website; (iii) copy, reproduce, republish, upload, post (unless where specifically permitted by us), transmit, or otherwise distribute, the website, Content, or any part thereof, nor remove, deface, obscure, or alter the website or any Content therein including any copyright notices, trademarks, or other proprietary rights; (iv) assert any proprietary rights in or to the Content nor remove, obscure or alter any notices of proprietary rights or disclaimers appearing in or on the website and Content; (v) use our name, logo or trademarks without our prior written consent; and (vi) use the website and Content in any unlawful manner, in a breach of third parties’ rights or our rights, including intellectual property rights and privacy rights, or in breach of these Terms.
2. CUSTOMER'S REGISTRATION AND ACCOUNT
2.1. In order to use the Platform and Services as our Customer, you may be required to first register and create an account (“Customer Account”). You hereby represent and warrants you will provide accurate and complete information. In the event of untrue or inaccurate information Apester may suspend or terminate the Customer Account. During the process of registering, you will designate personal and exclusive user name and password to access the Customer Account. You are solely and fully responsible for maintaining the confidentiality of the password and username of your Customer Account and for all activities that occur under the Customer Account, including if made on whom on your behalf. Unauthorized access or use of the Customer Account or Services must be immediately reported to the Apester. You may not assign or transfer your rights or delegate your duties under the Customer Account, including your user’s name and password, without the prior written consent of Apester.
3. SCOPE OF SERVICE, LICENSE & RESTRICTIONS
3.1. Subject to the terms herein, Apester shall provide Customers with the Platform’s services, which will include: (i) the applicable integration enabling implementation of the Units within Customer’s Digital Assets; (ii) online dashboard enabling you to choose the applicable scope of services, plans, features and packages, you wish to be provided with (according to the options offered by Apester), including as detailed under our Pricing Page (“Packages”), as well as view, monitor and obtain information, including actions, statistics, etc. Apester may include third parties’ advertisements within the Units (“Advertiser” and “Advertisements”, respectively), subject to the terms of the Package you have chosen, for the purpose of monetizing the Customer Digital Assets. The Customer agrees and acknowledges that the frequency, placement and timing of the Advertisements are subject to Apester’s sole discretion (collectively, the “Services”).
3.2. Integration must be made according to the guidelines provided by Apester, which shall constitute an integral part of these Terms (“Guidelines”). The Customer shall not have any claims for any errors resulted from integration made not in accordance with the Guidelines, and shall not be entitled to any refund or, if applicable any non-tracked payments, resulted from such integration.
3.3. Subject to the terms herein, Apester hereby grants Customers with a limited, revocable, non-exclusive, non-transferable and non-sub-licensable license to use the Platform and Services, and embed the Interactive Units solely within the Customer Digital Assets, solely during the Term (as defined below) and solely for the purpose set forth herein (“License”).
3.4. Apester, at its sole discretion, is entitled to: (i) determine the features, settings, packages, pricing, or other tools which are available as part of the Service; and (ii) modify, correct, amend, update, enhance, improve, remove, replace or make any other changes to, or discontinue, or cease, temporarily or permanently, the Service or any part therein, including any plans, features and types of Units, without liability to you. In addition, Apester may, from time to time, offer special promotions, discounts, money-back, etc. These offers shall be subject to the terms provided therein and Apester may revise, cease or cancel such promotional offers at any time, subject to its sole discretion. In the event of money-back offers – a cancelation notice must be provided by you by prior to the end of the applicable ‘money back term’, and in addition, such offer may be used by a Customer solely once per engagement with Apester.
3.5. Customer hereby undertake you will not, and not to allow others to: (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Platform or Services; (ii) take any action that imposes, or may impose at Apester’s sole discretion an unreasonable or disproportionately large load on the Services infrastructure; (iii) sell, license (or sub-license), lease, assign, transfer, pledge, or share the License granted or any rights under these Terms with any third party except as permitted hereunder; (iv) disassemble, decompile, reverse engineer or attempt to discover the Platform’s or Services’ source code or underlying algorithms; (v) upload invalid data, viruses, worms, malicious code or other software agents through the Platform or Services; (vi) interfere with the proper working or security measures of the Platform and Services; (vii) bypass the measures Apester may use to prevent or restrict access to the Platform and Services; (ix) use the Services for any illegal or unauthorized purpose, or could give rise to civil liability or other lawsuit; (xi) modify, change, edit, amend, truncate, alter, bypass or reorder any aspect of the Platform or Services, or insert any code or product, or in any other way manipulate the Platform or Services in any way or create any derivative works of the Services; (xiii) use the Services in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (xiv) place the Units in an iFrame or alter the appearance of the Units by placing it in a container or otherwise adding Customer’s own code overriding Apester’s code on the Platform or Units; (xv) generate clicks or generate page views, that Apester believes, in its sole discretion, are made through any automated, deceptive, fraudulent or other means; or (xvi) copy, crawl, index, cache or store any information derived by Apester.
3.6. Furthermore, Customer undertake not to, and not to allow others to use, upload, transfer, post or make available through to the Platform or Services any materials and content, including text, image, logo, graphic, design, etc., visual or audio that involves, facilitates, advocates or promotes one or more of the following: (i) false, misleading, deceptive, discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (ii) libelous, defamatory, obscene, nudity, pornographic, adult content, sexually explicit or abusive activities; (iii) illegal gambling; (iv) illegal activities; (v) MP3, MPEG and/or copyrighted materials for download, sale or otherwise, in any case without the permission of the copyright owner or otherwise in violation of law; (vi) a conflict or violation of any law or any intellectual property or other rights of any person or entity (“Prohibited Materials”). In Addition, the Customer shall not use any fraudulent practices intended to increase and clicks, views or actions (“Fraudulent Activity“).
3.7. Failure to comply with the provisions set forth above may result herein, at Apester’s sole discretion, in the termination or suspension of access to the Service (or any part or feature thereof) as well as immediate termination of these Tems, without derogating from any other remedy Apester is entitled to under these Terms or applicable law.
4. APESTER'S AND CUSTOMER'S REPRESENTATIONS AND WARRANTIES
4.1. Customer represent and warrants that: (i) you have full legal authority to be engaged by these Terms; (ii) you own or have the legal rights in the Customer’s Digital Assets used in connection with the Platform and any content used by you through the Services or uploaded, transferred, posted or made available through to the Platform or Services. It is hereby agreed that you shall be fully and the sole liable for any such content, and whether created or provided by you, or otherwise created by Apester on your behalf; (iii) Customer’s Digital Assets and content used in conjunction with the Units are and shall be at all time compliant with all applicable laws, rules, regulations, policies and industry standards. Among others, you will be responsible to clearly and conspicuously identify or label all content provided through the Platform in accordance with all applicable laws and regulations; (iv) Customer’s Digital Assets and content do not infringe upon any Intellectual Property Right or privacy rights of any third party, and do not include or rely on any Prohibited Materials (as defined below).
4.2. Apester represents and warrants that: (i) it has full legal authority to be engaged by these Terms; (ii) it owns or has the legal rights in the website, Platform and Services; and (iii) it will provide the Services in a timely and professional manner
5. THIRD PARTY CONTENT MADE AVAILABLE THROUGH THE SERVICES
5.1. The Services may include third party content, including images and Advertisements (“Third Party Content”). Customer represents and warrants that any use of Third-Party Content by the Customer or otherwise Third-Party Content made available through the Platform or Services by the Customer, and even if such Content was obtained through third party sources or database offered by Apester or Apester’s offered template Units, shall be in compliance with applicable laws, and specifically shall not breach any third party’s intellectual property rights or copyrights.
5.2. The Customer agrees and acknowledges that any Advertisements made available through the Services are provided on behalf of the Advertiser and Apester shall have no responsibility or liability in this regard. Including any responsibility to monitor such Advertisement nor the content offered therein.
5.3. In the event the Customer is choosing to use Apester’s offered template Units, including the content therein, the Customer acknowledge that use of certain Third Party Content may require an applicable license to be obtained by the Customer or other requirements such as attribution, etc. in order to use such Third Party Content within the Customer’s Digital Assets, and it is Customer’s sole responsibility to determine which license is needed, if the Third Party Content can be used by it, and to comply with any third party’s terms or requirements for the use of such Third Party Content. It is hereby clarified that the use of Third-Party 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.
6.1. In consideration for the License and Services, the relevant fees to be paid in connection thereof (“Consideration”) shall be calculated and paid in accordance with the Package chosen by you through your Customer Account or during registration, including type of subscription, features (or as otherwise agreed by the parties in writing, under an insertion order).
6.2. All amounts payable in consideration for the Services are exclusive of all taxes including, among others, sales, value-added and any other taxes, charges, levies and duties.
6.3. Without derogating from the foregoing, Apester reserves the right to change prices of the Services, from time to time, without notice. In the event of a Monthly Subscription or Annual Subscription, Apester shall not change the prices during the period of the subscription, however, in the event of an automatic renewal, it is your responsibility the review the updated prices following renewal, as such updated prices will govern and apply during the renewed term.
6.4. If Customer is late on payment for the Services, Apester may suspend the Services or terminate these Terms for breach pursuant to Section 7 below. Late payments shall be subject to interest of 1.5% per month on any outstanding balance, including all collection expenses.
7. SERVICES' TERM AND TERMINATION
7.1. If you are our Customer, these Terms shall commence on the date you have accepted its terms through registration or any use of the Services, and shall thereafter continue, as follows (collectively “Term”):
(i) Trial Subscription: trial subscription is effective throughout the term indicated when you choose this Package. Note that, Apester is not obligated to provide any notice regarding the end of the trial period, and is not obligated (however may, at its discretion) to block your Customer Account following the end of the trial period. It is your responsibility to either choose an applicable Package following the end of the trial period or otherwise cease your use of the Services. You will be obligated to pay the applicable Consideration, for any use of the Services following the end of the trial period. Apester may further be entitled to charge the applicable amount, using the payment method provided by you.
(ii) Annual Subscription: these Terms shall continue for successive periods of twelve (12) months each, that will be automatically renewed unless you will provide Apester with thirty (30) days written notice prior to the automatic renewal of the annual subscription period.
(iii) In the event of a Monthly Subscription: these Terms shall continue for successive periods of one (1) month each, that will be automatically renewed, unless you will provide Apester with ten (10) days written notice prior to the automatic renewal of the monthly subscription period.
7.2. Notwithstanding the above, Apester may terminate these Terms, for any or no reason, by providing the Customer with a 30 days prior written notice. In such event, where the termination is made solely due to Apester’s convenience, a pro -rata refund shall be provided, in the event applicable. In addition, Apester may terminate these Terms, effective immediately, in the event: (i) Customer has breached these Terms; (ii) Customer files a petition for bankruptcy, is adjudicated bankrupt, is insolvent, makes an assignment for the benefit of creditors, or enters into an agreement with its creditors pursuant to other bankruptcy law. Furthermore, in any event of breach or suspected breach of these Terms by the Customer, Apester shall be emitted to immediately block access or suspended the Customer Account, without liability to Customer, including for any loss of data therein.
7.3. Upon the expiration or termination of these Terms: (i) each party will promptly return to the other party all Confidential Information of the other party in its possession or control; (ii) you will pay all accrued and unpaid Consideration to Apester, if and as applicable; (iii) all rights and licenses granted under these Terms shall immediately terminate and you shall cease use of the Platform and Services. All sections detailed herein which by their nature are intended to survive termination, shall survive termination or expiration for any reason.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. The Intellectual Property Rights and all other rights, title and interest of any nature in and to the Platform and Services or any related documentation made available by or on behalf of Apester hereunder (including all modifications, enhancements, upgrades, customizations and derivative works thereof, and excluding the Third-Party Content) 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: (i) 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, (ii) patents and patent applications, (iii) rights in or to copyrights, whether or not registered, (iv) rights in or to trade secrets and confidential information, including without limitation know-how, technology methods, ideas and inventions, (v) rights in software and computer code (whether in source code, object code or any other form) and (vi) all applications and registrations of any of the foregoing.
8.2. If Apester receives any feedback (e.g., questions, comments, suggestions etc.) regarding any of the Services (“Feedback”), all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to Apester and to the extent required by applicable law then you hereby irrevocably transfer and assigns to Apester all Intellectual Property Rights it has in such Feedback and waive any and all moral rights that you may have in respect thereto.
8.3. To the extent applicable, you grant Apester the right during the Term to use your content uploaded and used in conjunction with the Units in accordance with the terms hereof, and you grant Apester the right to use Customer’s name and logo when referring to Apester’s customers in Apester marketing materials.
8.4. Nothing in these Terms shall be construed as transferring any right, title or interest to you or any third party, unless explicitly stated hereunder. Apester and its licensors reserve any and all rights not expressly granted under these Terms. The provisions of this section shall remain in full force and effect after termination or expiration of these Terms for whatever reason.
You shall indemnify, defend and hold harmless, Apester and its respective affiliates, officers, directors, shareholders, or representatives (“Indemnified Parties”) from any and all demands, judgments, awards, losses, damages, expenses, claims and liabilities, and all related costs, including reasonable legal fees (“Liabilities”) incurred by Indemnified Parties as a result of or arising out of a third party claim arising from: (i) a breach of these Terms, including, among others, any representations or warranties made by you hereunder; (ii) a breach by you of any of its confidentiality or data protection obligations hereunder, including, among others, under our Data Processing Agreement for Customers (iii) your gross negligence, willful misconduct or fraud, or your employees, agents, or subcontractors; and (iv) any breach or violation of applicable law by you.
10. LIMITATION OF LIABILITY AND DISCLAIMER
Except as otherwise expressly stated hereunder, AND TO the maximum extent permitted by applicable law, THE PLATFORM, SERVICES AND ANY RELATED DOCUMENTATION, SOFTWARE OR COMPONENT THEREIN 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 PLATFORM, AND SERVICES INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. APESTER ASSUMES NO RESPONSIBILITY OR LIABILITY FOR: (I) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES; (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (III) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES; AND (IV) ANY LOSS OF DATA OR CONTENT. APESTER SPECIFICALLY ASSUMES NOR RESPONSIBILITY FOR THIRD PARTY CONTENT. In no event shall apester be liable for any indirect, consequential, special, punitive or incidental damages, or damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss, arising out of the use of the WEBSITE OR SERVICES, EVEN IF APESTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL APESTER’S MAXIMUM AGGREGATE LIABILITY TO THE CUSTOMER FOR DAMAGES IN CONNECTION WITH THESE TERMS AND THE SERVICES EXCEED THE AMOUNT OF CONSIDERATION ACTUALLY PAID TO APESTER BY CUSTOMER UNDER THESE TERMS IN THE SIX (6) MONTHS PRECEDING SUCH LIABILITY;
In the context of the relationship under these Terms, either party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential information regarding its technology and business (“Confidential Information”). The Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its use or provision of the Services. Confidential Information shall not include information that Receiving Party can show: (i) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information: (ii) was received by Receiving Party from any third party without restrictions; (iii) is publicly and generally available, free of confidentiality restrictions; or (iv) is required to be disclosed by law, regulation or is requested in the context of a law enforcement investigation, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperates in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees and contractors with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. The non-disclosure and non-use obligations set forth in this Section 11 shall survive the termination or expiration of these Terms for a period of 3 years.
12. PRIVACY, DATA PROTECTION & END USER DISCLOSURE AND CONSENT
12.1. When Customer is using the Platform and Services, the Customer may grant access to data collection from end users as needed for the purpose of the Services. Hence, to the extent applicable to the parties, the parties shall comply with the terms and condition of the Data Processing Agreement available at: https://apester.com/dpa/, incorporated herein by reference.
14.1. Governing Law and Jurisdiction. these Terms and any claim, controversy, or dispute arising under, related to, or otherwise in connection with these Terms shall be interpreted, construed, and enforced in accordance with the laws of England, applied without giving effect to any conflicts of law principles. The parties agree that any lawsuit that may be brought with respect to these Terms shall be brought and tried exclusively in the competent courts located within London, England.
14.2. Relationship of the Parties. 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.
14.3. Assignment. These Terms may not be assigned or transferred by Customer without the prior written consent of Apester.
14.4. 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, and/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.
14.5. Entire Agreement. These Terms, including all exhibits, contains the entire agreement of the parties, and supersedes any prior oral or written agreements or understanding between the parties.
14.6. Severability. Should any one or more of the provisions of these Terms be determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of these Terms 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.
14.7. Waiver. A delay or omission by either party to exercise any right under these Terms shall not be construed to be a waiver of such right. A waiver by either party of any of the performance provisions of these Terms shall not be construed to be a waiver of any succeeding performance or breach.
14.8. Promotions. Customer hereby grants Apester the right to use Customer’s name and logo when referring to Apester’s customers in promotions and marketing materials.