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 and DPA [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:
- 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.
- 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.
- 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.
- 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.
To the extent not prohibited under applicable law, Publisher agrees that Apester will be Publisher’s exclusive service provider during the Term and Publisher agrees that it will not engage any third party providing the same services in connection to making interactive content widgets on Approved Inventory.
- Payment and Fees
In consideration of placing the Interactive Units within the Inventory the Publisher shall receive a fix percent out of the revenue, minus Serving Fees, all subject to the terms set forth and agreed upon in the Cover Page. Publisher acknowledges and agrees that: (i) it shall not be entitled of payment for placements that have not been pre-approved in writing by Apester; (ii) Apester’s reports are final and the payment is based solely upon such reports; (iii) it shall not be entitled of any sums which were proved to be derived or generated from use of Prohibited Materials or Fraudulent Traffic; and (iv) Apster shall not be obliged to make any payments to Publisher for any calendar month if the total amount is less than $300 (“Minimum Threshold“), in such case Apester will roll-over such payment until the Minimum Threshold has been reached.
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.
- Privacy and Data Protection
- Term and Termination
The Agreement shall commence on the Effective Date, and shall thereafter continue for a period of one (1) year from the Effective Date, unless otherwise terminated by either party 30 days prior to the expiration date hereof. The Agreement shall be automatically renew for subsequent periods of one (1) year each until terminated in accordance with the terms herein (“Term”). Either party may terminate the Agreement if (a) a material breach occurred which was not cured within 10 days after the notice of the breach was provided; or (b) a party 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. Upon termination (i) each party will promptly return to the other party all Confidential Information of the other party in its possession or control, except as required by applicable laws; (ii) Apester shall, within 60 days following termination, pay unpaid Revenue; and (iii) the License granted under this Agreement shall immediately terminate and Publisher shall cease use of the services and remove the Interactive Units from the Inventory.
- Limitation of Liability
In no event shall either Party be liable for any damages whatsoever including, without limitation, 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 Services or this Agreement, even if Apester has been advised of the possibility of such damages. Notwithstanding anything to the contrary herein, and except for willful misconduct, fraud or breach of confidentiality obligations hereunder, in no event shall Apester’s maximum aggregate liability for damages in connection with the Agreement exceed the lower of: (i) the amount of Revenue actually paid under this Agreement in the 12 months preceding such liability, or (ii) USD 250,000.
Each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless, the other Party 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 Party as a result of or arising out of a third party claim arising from: (a) a breach of any representations or warranties made by Indemnifying Party hereunder; (b) a breach by an Indemnifying Party of any of its confidentiality or data protection obligations hereunder; (c) the gross negligence, willful misconduct or fraud of an Indemnifying Party, its employees, agents, or subcontractors; and (d) any breach or violation of applicable law by an Indemnifying Party. Should the Indemnified Party intend to claim indemnification hereunder from the Indemnifying Party, the Indemnified Party shall promptly notify the Indemnifying Party in writing of any Liabilities in respect of which the Indemnified Party intends to claim such indemnification and the Indemnifying Party shall be entitled, but not obligated, to assume the defense of any third party claim thereof with counsel selected by it. The Indemnified Party, including its affiliates, directors, officers and employees, shall co-operate fully, at Indemnifying Party’s expense, with Indemnifying Party and its legal representatives in the investigation and defense of any Liabilities covered by this indemnification. The Indemnified Party shall not settle any claim or Liability for which it seeks indemnification hereunder without the prior written consent of the Indemnifying Party. The indemnification shall not apply to amounts paid in settlement of any Liability if such settlement is effected without the prior written consent of Indemnifying Party, not to be unreasonably withheld or delayed.
- Governing Law and Jurisdiction
This Agreement and any claim, controversy, or dispute arising under, related to, or otherwise in connection with this Agreement, including the nature of the relationship of the Parties and/or the interpretation and enforcement of their respective rights and obligations under this Agreement, shall be interpreted, construed, and enforced in accordance with the laws of England, applied without giving effect to any conflicts of law principles that would result in the application of the laws of any other jurisdiction. The Parties agree that any lawsuit that may be brought with respect to this Agreement shall be brought and tried exclusively in the competent courts located within London, England.
- 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.