PLEASE READ THESE TERMS CAREFULLY. IF YOU ELECTRONICALLY ACCEPT THESE TERMS, OR OTHERWISE USE THE CEMMERCE SERVICES OR SOFTWARE (COLLECTIVELY, THE “SERVICES”), YOU AGREE TO BE BOUND BY ALL OF THESE TERMS (THE “AGREEMENT”) AS A LEGALLY BINDING AGREEMENT UPON YOU. YOU HEREBY REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE. IF YOU DO NOT ACCEPT THE TERMS, YOU ARE NOT PERMITTED TO USE THE SERVICES. IF YOU ARE ENTERING THIS AGREEMENT AS AN EMPLOYEE OR REPRESENTATIVE OF YOUR EMPLOYER, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND SAID EMPLOYER OR OTHER LEGAL ENTITY TO THIS AGREEMENT AND THE TERM “YOU” INCLUDES YOUR EMPLOYER AND ANY OTHER PARTY ON WHOSE BEHALF YOU ACT. IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THESE TERMS OR DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR OTHER LEGAL ENTITY, PLEASE DO NOT ACCEPT THESE TERMS OR ACCESS OR USE THE SERVICES. YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.
- ‘Activity’ means generating traffic through your Website to Online Retailer Websites by means of the use of our Services and/or Software.
- ‘Cemmerce’ means a division of Navitrio Ltd.
- ‘Customer’ means a user of the Website that is referred to an Online Retailer via the Services and/or interacts with an Online Retailer by purchasing goods and/or services.
- ‘Online Retailer’ means a party that supplies goods and/or service to Customers online and which has an affiliate program.
- ‘Commissions’ means monetary payments made to you in relation to sales by Customers from Online Retailers.
- ‘Technology’ means our software that facilitates the automated and online referral of a Customer to an Online Retailer by means of an algorithm which indexes various pages through the use of your website by means of reviewing and catching key phrases for such relevant products, and that records the referral and the Customer's sales activity.
- ‘Transaction’ means a retail transaction concluded between a Customer and Online Retailer as approved in writing to us by the Retailer.
- ‘Website’ means your website/s.
- Registration. In order to use the Services, you are required to complete the registration process at www.cemmerce.com/signup. You agree to provide us with correct and accurate information and details of your Website/s that shall be used in connection with the use of the Services (as defined herein) through your Website/s. We will evaluate all registration applications for suitability to receive access to the Services and based on our sole discretion we will inform you via email if your registration application has been approved. If your registration application is approved, we will provide you with a unique user ID and code that you will add to your Website/s in order to enable the Software on your Website/s. You agree to provide us with accurate details and maintain an up-to-date account, with correct details. You hereby acknowledge and agree that improper maintenance of your details will delay Commission (as defined below) which may be owed to you. Our Software may only be used on Website/s for which you have the authority to modify. The use of our Software alone or in conjunction with browser toolbars, proxies or other intermediate software to modify websites or affiliate clicks you do not control is specifically prohibited. If we detect or suspect any improper use of our Software and/or Services, we reserve the right to deny or cancel the Services for any Website/s at our sole discretion.
- License. Subject to the terms of this Agreement, we grant you a non-exclusive, non-transferable license to download, install on your Website/s, and execute a unique object code copy of the tools provided as part of our Services, and any upgrades and updates to such Software made available by us from time to time (collectively, the “Software”), solely for use in connection with use of the Services and only during the Term (as defined herein). We retain all right, title and interest in and to the Software and Services, all improvements and derivative works thereof, together with all intellectual property rights embodied therein. You will have no rights with respect to the Software and/the Services except for the limited license expressly set forth herein.
- Restrictions. You may NOT: (i) make any copies of all or any part of the Software or otherwise reproduce the Software except for archival copies as permitted by the United States Copyright Act; (ii) use the Software or Services in connection with a service-bureau, time sharing or fee-for-service arrangement with third parties, or otherwise provide the benefit of the Services to any third party; (iii) unless otherwise permitted by applicable local law, decompile, decrypt, disassemble, reverse engineer or otherwise discover the source code for the Software, or attempt to disable or defeat any locking mechanism within the Software; (iv) modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or any part of the Software; (v) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software; (vi) use any robot, spider, scraper, or other automated means to access the Services for any purpose; (vii) interfere or attempt to interfere with the integrity or proper working of the Services, or any related activities or (viii) use the Services in any unlawful manner or in breach of this Agreement.
- Prohibited Sites. You hereby acknowledge, agree and accept your Website/s do not and will not contain any content that is of the following nature: (i) pornography or sites that contain links to such content; (ii) gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm; (iii) promotion of any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based, etc.); (iv) participate in or transmit inappropriate and/or unsolicited e-mails (spam); (v) promote any type of illegal substance or activity or contain any illegal content or promote invasion of privacy, (i.e., wildlife or endangered species products, drugs and drug paraphernalia, embargoed goods, recalled items, stolen property, surveillance cameras and such similar equipment, etc.); (vi) illegal, false or deceptive investment/laundering advice, or (vii) is deemed to be improper or inappropriate according to the reasonable public consensus. Failure to comply with this provision shall be deemed a breach of this Agreement and may result in immediate termination of your use of the Services and/or the Website your forfeiture of any Commission earned and unpaid as of the date of your termination.
- Retailers. You acknowledge and agree that (i) we use our sole discretion in determining with which Online Retailers the Website/s will be affiliated, as well as the number of Online Retailers (if any) with which the Website/s will be affiliated; (ii) we may (through the Software and with your permission) re-write links on the Website/s from one Online Retailer to another in order to obtain the best value for you; (iii) Online Retailers set their Commission structures and may change their Commission structures (generally or solely with respect to you) or terminate their involvement in the Services (generally or solely with respect to you) at any time and we will have no control over or liability in connection with any Online Retailer's decision to do so; and (iv) Online Retailers may at any time send us notice that they are terminating their involvement and participation in the Services or requesting that you remove links or references to Online Retailers' brands, products, services or trademarks and we will communicate this notice to you. We reserve the right to monitor your use of the Software to ensure being used by you in accordance with the terms and conditions of this Agreement.
- Dormant Accounts. In the event that upon initial use of the Services and/or Software you have not generated any traffic or should you have no Activity for a period of six (6) consecutive months, we shall contact you by e-mail notification regarding such inactivity. If after three (3) months of receipt of our notification, you have not responded to us, reactivated your use, or if you have confirmed the dormant status of your use of our Services and/or Software, we hereby reserve the right to terminate your use in which event you hereby waive your right to receive any unpaid commissions which may be owed to you.
- Service Levels. We will use our commercially reasonable endeavors to ensure that our Software and Commerce Enablement Platform works on your Website/s, and that we shall have a redundancy and automatic failover plan in place to maintain Services uptime. You acknowledge that the time to redirect from an affiliate to an Online Retailer’s website is outside our control and no guarantees are made regarding this process. You shall notify us of any Services performance issues via e-mail. We will use commercially reasonable endeavors to correct any reported issues within a reasonable time from the date which we have received notice.
- Availability. You hereby acknowledge that although we will use reasonable efforts to keep and maintain the accessibility to the Services and/or Software, disruptions to the use of the Services and/or Software, may occur at no fault of our own. We will use reasonable efforts to repair and resume, in working order, the Services and/or Software, as soon as practicable.
- Infringement. None of your activities in connection with the use of the Services and/or the Software shall infringe third party proprietary rights (including but not limited to trademark, copyright, and any and all other proprietary rights). Failure to comply with this provision shall be deemed a breach of the terms of this Agreement and may result in immediate termination of the use of the Services and/or Software and your forfeiture of any Commission earned and unpaid as of the date of your termination.
- Copyright Notice. In the event that you believe or are inclined to believe that another publisher, end-user or Online Retailer, has posted materials which may constitute copyright, trademark or any other proprietary infringement of any of your rights, you may submit to us a written statement or summary, explaining why you have an honest and good faith belief relating to the alleged unauthorized use. The written statement should include your name and contact information, as well as a statement containing information regarding such alleged infringement. If you believe that certain content may violate third party rights, please contact the owner of such proprietary rights. Upon investigation of such allegations, we reserve the right to terminate such infringers’ use of our Services and access to our website based upon our sole discretion.
- Indemnity. You will indemnify, defend and hold harmless us, our affiliates and any of our respective officers, directors, shareholders, employees and agents from and against any and all liabilities, losses, damages and expenses (including reasonable attorneys' fees and disbursements) resulting from or based upon (i) any claim that the Website infringes or misappropriates any third party intellectual property rights; (ii) your breach of any representations or warranties made by you in this Agreement or of any other obligation of yours set forth in this Agreement, or (iii) any claim by any Customer or other third party arising from your use of the Services or Software, unless due to our gross negligence or willful misconduct.
- DISCLAIMER. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE PROVIDE THE SERVICE AND SOFTWARE TO YOU “AS IS” AND WE DISCLAIM ALL WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. YOU HEREBY AGREE THAT WE WILL NOT BE LIABLE FOR ANY LOSSES YOU MAY INCUR AS A RESULT OF DELAY IN PAYMENT, INCLUDING AS A RESULT OF OUR OWN MISCONDUCT. OUR SOLE LIABILITY IN SUCH AN INSTANCE SHALL BE TO MAKE FULL PAYMENT (WHICH IS LEGITIMATLEY OWED TO YOU) OF THE AMOUNT DUE AS SOON AS POSSIBLE. WE RESERVE THE RIGHT TO INCLUDE PRODUCTS WHICH, IN ACCORDANCE WITH OUR SOLE DISCRETION, WE DEEM AS BEING THE MOST ACCURATE AND RELEVANT PRODUCTS WHICH WE SHALL OPT TO SELECT AND PROMOTE. WE WILL USE OUR REASONABLE EFFORTS TO LINK APPROPRIATE PRODUCTS, HOWEVER, WE CANNOT GUARANTEE THAT THE SOFTWARE WILL PROMOTE THE MOST ACCURATE, COMPLETE AND RELEVANT PRODUCTS AS FOUND WITHIN YOUR CONTENT, AND THERE MAY BE PRODUCTS WHICH ARE NOT RELEVANT OR ACCURATE WHICH ARE BEING LINKED TO THE CONTENT, AS WELL AS PRODUCTS WHICH APPEAR WITH NEGATIVE REFERENCE TO THE CONTENT. DUE TO CONSTANT CHANGES AND UPDATES IN PRICES, WE CANNOT ASSURE YOU THAT THE MOST CURRENT PRICES WILL AT ALL TIMES BE LINKED THROUGH THE COMMERCE ENABLEMENT PLATFORM.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL WE, OUR AFFILIATES OR ANY OF OUR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM USE OF THE SOFTWARE OR SERVICE LOSS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. OUR MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OR POSSESSION OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE AMOUNT OF THE COMMISSIONS PAID TO YOU FOR THE SERVICE PROVIDED UNDER THIS AGREEMENT DURING THE LAST SIX (6) MONTHS PRIOR TO THE CLAIM. IN NO EVENT SHALL WE, OUR AFFILIATES OR ANY OF OUR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS BE RESPONSIBLE FOR ANY GOODS, SERVICES AND PRODUCTS WHICH ARE PURCHASED THROUGH SUCH ONLINE RETAILERS, INCLUDING INJURIES, DAMAGES, CLAIMS, LIABILITIES AND COSTS WHICH ARE INCURRED IN CONNECTION WITH OR ARISING FROM SUCH PURCHASE AND YOU HEREBY WAIVE AND RELEASE US, OUR AFFILIATES AND ANY OF OUR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY SUCH CLAIMS, LOSSES AND LIABILITIES.
- Compliance. You hereby represent, warrant and accept that you are responsible for compliance with the requirements of any and all relevant legislations in force or applicable in the United States and warrant that content on your site shall render Cemmerce liable to any proceedings whatsoever.
- Term and Termination. This Agreement will commence upon its execution and will continue until terminated by either you or us upon at least five (5) business days' prior written notice to the other party. In the event of termination of this Agreement for any reason other than your breach of this Agreement, we will pay outstanding commissions due to you in accordance with the terms of this Agreement. Upon termination of this Agreement for any reason, you will immediately cease use of, and promptly remove from the Website/s, all instances of the Software and the Services. The terms hereof which by their nature should survive this Agreement shall survive its termination.
- Miscellaneous. In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion will be construed in accordance with the applicable law and the remainder of this Agreement will remain in full force and effect. The paragraph headings herein are provided only for reference and will have no effect on the construction or interpretation of this Agreement. No waiver will be effective unless in writing. This Agreement will be governed by and construed in accordance with the laws of the State of Israel. Except for proceedings commenced by us to protect our intellectual property or confidential information which may be brought in any court of competent jurisdiction, you hereby agree that any and all disputes arising hereunder will be resolved exclusively by the competent courts located in Tel Aviv. When we make changes to this Agreement, the 'last updated' date at the top of this Agreement will be revised. If there are material changes to this Agreement, we will notify you by electronic mail. Your continued use of the Software and Services after any changes or revisions to this Agreement will indicate your agreement with the terms of this Agreement. You may not assign this Agreement without our prior written consent which will not be unreasonably withheld. This Agreement contains the entire agreement concerning the subject matter hereof and supersedes all existing agreements and all other oral, written or other communications.
Last Updated: July 2012