Last updated August 20, 2013
By clicking a box that states that You accept or agree to these Terms and Conditions, You signify Your agreement to these Terms and Conditions (“Terms and Conditions” or “Agreement“). If You do not agree to these Terms and Conditions, You may not use the Services and/or Triapodi’s API (as defined below). Triapodi Ltd. (“Triapodi“) reserves the right to update and change these terms from time to time without notice. This Agreement constitutes the terms and conditions for Your engagement with Triapodi. The term “You” or “Your” shall mean any entity identified in the enrollment form submitted by You or by any of Your Affiliate, entity and/or agency, network or any other third party on Your behalf and/or any entity accessing Your Account on Triapodi’s site (www.triapodi.com) (the “Site“).
Whenever the following capitalized terms are used in this Agreement, such terms will have the meanings set forth below:
(a) “Advertising Revenue” shall mean the amount to be paid to You by Triapodi, out of funds received by Triapodi from third parties (“Advertisers”) for any download of Content through Your Mobile Content Service, less any applicable commercial direct taxes (other than taxes on Triapodi’s net income), other governmental fees and bank charger, if any. The percentage and calculation of the Advertising Revenue shall be made by Triapodi, at its sole discretion.
(b) “Affiliate” shall mean any person or entity Controlling, Controlled by, or under common Control with a specified entity. For purposes of the definition of an Affiliate, “Control” and its derivative forms, “Controlling” and “Controlled by” shall mean, with regard to an entity, the legal, beneficial, or equitable ownership, directly or indirectly, of fifty percent (50%) or more of the outstanding equity or capital stock (or other ownership interest) of such entity ordinarily having voting rights or the equivalent right under contract to control management decisions.
(c) “Appreciate® Software Application” shall mean Triapodi’s social app discovery and sharing service for Android O/S and its recommendation engine, which is based on Triapodi’s artificial intelligence algorithms, combined with insights on consumers’ social activities.
(d) “Collected Information” shall mean non-personally identifiable information gathered from Users’ mobile device and/or from Your server regarding Users’ characteristics, activities, behavior, usage patterns and apps sessions.
(e) “Content” shall mean any mobile android applications offered on the Android Market, accompanied by hyperlinks thereto, and other content or services for mobile devices provided by Triapodi and offered to Users.
(f) “Mobile Content Service” shall mean the promotion, sale, subscription, and delivery of Content, including over-the-air Content delivery, operated by You.
(g) “Proprietary Information” shall mean: (i) the existence and status of the Services; and: (ii) any and all other information, materials, and products relating to the activities and business of either of the parties hereto and/or its Affiliates (the “Disclosing Party“) including any information related to Appreciate® Software Application as a whole and/or any part thereof, such application’s specifications and any inventions or improvements to it, all whether in oral, written, graphic, or machine-readable form, or in any other form, including, without limitation, reports, concepts, techniques, processes, methods, systems, designs, drawings, photographs, models, prototypes, computer programs, research materials, formulas, development or experimental work, work in progress, mask work, inventions, cost data, marketing plans, product plans, business strategies, financial information, forecasts, personnel information and customer or supplier provided that same were (a) marked by the Disclosing Party as confidential if disclosed in writing or electronically, (b) if orally or visually disclosed, identified as confidential at the time of disclosure and summarized in writing by the Disclosing Party and transmitted to the other party (the “Recipient“) within thirty (30) days after such disclosure, or (c) should be reasonably understood by Recipient to be confidential information of the Disclosing Party. Notwithstanding the aforesaid, information shall not be deemed Proprietary Information, for purposes of this Agreement, if: (a) such information is in the public domain at the time of disclosure, or subsequently becomes part of the public domain, through no breach of Recipient of its obligations hereunder; or (b) such information is received by Recipient from a third party exempt from confidentiality undertakings; or (c) such information was in the possession of Recipient at the time of disclosure; or (d) is independently developed by the Recipient without reference or reliance upon the proprietary information; or (e) if Recipient is compelled by court or government action pursuant to applicable law to disclose any Proprietary Information, provided, however, that to the extent permitted by law, Recipient shall give the Disclosing Party prompt notice thereof.
(h) “Triapodi’s API” shall mean Triapodi’s application programming interface and SDK .
(i) “Triapodi’s Statistical Information” shall mean Triapodi’s proprietary, statistical, non-personal, information based on data gathered by Triapodi from users of Appreciate® Software Application and on the analysis of their app sessions.
(j) “User” shall mean any of the users of Your engine/site/service/application, as identified by You in Your Account.
(m) “Your Account” shall mean the account to be opened on the Site in accordance with the terms provided herein as amended from time to time. In order to open such an account, You must register into the Site and create a unique, password protected account, all as provided in Section 2 (c) below.
2. Mobile Download & Content Service
(a) General. Triapodi shall advertise and/or promote Content through Your Mobile Content Service.
(b) Compensation. Triapodi shall pay You Advertising Revenue, as provided below in Section 3.
(c) Services. Triapodi shall provide You the Services, as specified in Section 4 below.
(a) Triapodi shall pay You the Advertising Revenue, within forty five (45) days of the end of the calendar month during which the download of the respective Content in accordance with the terms herein has ocurred.
Payment of the Advertising Revenue is dependent upon Advertisers paying such funds to Triapodi, and therefore, You agree that Triapodi shall only be liable to You for Advertising Revenue solely to the extent that Triapodi has received such funds from the Advertisers. You hereby release Triapodi from any claim for Advertising Revenue if Triapodi has not received such funds from the Advertisers.
Payments of the Advertising Revenue shall be made only if the balance of the Advertising Revenue due to You is greater than or equal to $20USD (Twenty Dollars, US).
If You dispute any payment made in connection with this Agreement, You must notify Company in writing within thirty (30) days of any such payment. Failure to so notify Triapodi shall result in the waiver by You of any claims related to such disputed payment. Payment shall be calculated solely based on records maintained by Triapodi. Triapodi shall not be liable for any payment based on (i) any fraudulent impressions generated by any person, robot, automated program or similar device or for fraudulent impressions similarly generated on any advertisements, as reasonably determined by Triapodi; (ii) impressions commingled with a significant number of fraudulent impressions or fraudulent clicks described in (i) above; or (iii) any breach of this Agreement by You. You agree to pay all applicable taxes or charges imposed by any government entity in connection with this Agreement.
(b) Each party to this Agreement will receive no compensation, payment of fees or charges, or reimbursement of expenses from the other party in connection with the subject matter hereof other than as set forth in this Section 3.
(c) The Advertising Revenue due to You (if any) shall be paid to the bank account, which details shall be provided by You to Triapodi.
4. Triapodi’s Ancillary Services
(a) Triapodi shall provide to You a recommendation engine and/or a search engine of Content (collectively “Engines“, each, an “Engine“). The provision of such services (the “Services“) by Triapodi is based on Triapodi’s Statistical Information and on the Collected Information.
(b) Triapodi shall: (i) enable You to create Your Account; and ii) enable You to access Triapodi’s API through Your Account by providing a Java SDK and/or an HTTP web service.
(d) Where the Code was provided to You, it must be included in unaltered form and You will not modify, circumvent, impair, disable or otherwise interfere with the Triapodi’s API via the Java SDK.
(e) Triapodi does not guarantee that the Services and/or Your Account will be operable at all times or during any down time (i) caused by outages to any public internet backbones, networks or servers; (ii) caused by any failures of the Engine and/or Your Account and/or Triapodi’s API and/or server/s, Your engine/site/service/application and/or Your server/s, equipment, systems or local access services; (iii) for previously scheduled maintenance; and (iv) relating to events beyond Triapodi’s control such as strikes, riots, insurrection, fire, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters or interruption in internet services to an area where Triapodi or Triapodi’s and/or Your server/s are located.
(f) Triapodi is not obligated to make modifications or customizations of the Content or of Triapodi’s API, to the extent that such modifications or customizations require changes to any of the source code for any software that You use to provide the Content to Users. Where changes to the Content and/or to Triapodi’s API are required in order for any such Content to be offered by You to Users (“Changes“), the parties shall negotiate the implementation of the Changes and the terms and conditions of such implementation in good faith.
(g) Subject to Your compliance with all of Your undertakings and obligations hereunder, Triapodi shall grant You and Your Affiliates (collectively referred to in this paragraph (h) as “You“), and You hereby accept: (i) a limited, world-wide, royalty-free, non-exclusive, non-transferable, revocable and non-sub-licensable license to use the Engine/s and Triapodi’s trademarks or service marks (solely to the extent necessary to promote and/or make reference to the Services or the Content), all in accordance with the terms and conditions of this Agreement; and (ii) for internal business purposes only, a non-exclusive, limited, non-transferable, revocable and non-sub-licensable license to install, use and copy Triapodi’s API via Java SDK and/or HTTP web service, as the case may be, solely for the purpose of this Agreement and the provision of the Services and in accordance with the terms and conditions of this Agreement and the applicable Statement of Work; all in accordance with the terms and conditions of this Agreement.
(h) Nothing in the Agreement shall be deemed as granting You any other rights, warranty or license by implication or otherwise under any patent, copyright, know-how or design rights, or other form of protection of industrial or intellectual property, except as expressly otherwise provided in this Agreement. Notwithstanding anything to the contrary herein, You agree that, to the fullest extent legally possible, all right, title and interest in any relevant worldwide patent rights (including patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights, including, without limitation, all work products, artworks, deliverables, and any by-products (collectively, “Intellectual Property Rights“) specifically created during term of, and/or in connection with, this Agreement and/or the provision of the Services by Triapodi (and/or any of its employees, subcontractors or agents) on Your behalf will remain Triapodi’s exclusive property during and after the term of this Agreement exclusively by Triapodi and You shall retain and have no rights therein whatsoever but for those provided in Section 2 (h) above. You shall assist Triapodi in every proper way to obtain and enforce Triapodi’s Intellectual Property Rights in any and all countries. To this end, You shall execute, verify and deliver any document and perform such other acts (including appearance as witness) as Triapodi may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing Triapodi’s Intellectual Property Rights. Triapodi will compensate You for time and/or expenses actually spent by You in connection with the foregoing, provided that such assistance was coordinated in advance with, and pursuant to a written request by Triapodi.
(j) Except as set forth expressly herein, You shall not, and shall not permit any third party, to (i) reverse engineer, or attempt to find the underlying code of the Triapodi’s API, SDK, any Engine, or any of the Services; (ii) modify the SDK, the Triapodi’s API and/or the Services, or insert any code or product to the Triapodi’s API, or SDK, or in any other way manipulate the Services, Triapodi’s API and/or the SDK without Triapodi’s prior written consent; (iii) sublicense, sell or distribute the Triapodi’s API and/or the SDK or bypass Triapodi’s security measures. To the extent any of the restrictions set forth in this Section are not enforceable, You shall immediately inform Triapodi in writing.
5. Representations, Warranties and Covenants
5.1 Triapodi represents, warrants, and covenants to You as follows:
(a) Triapodi will perform the Services in accordance with the terms and conditions of this Agreement, Triapodi’s policies, including its privacy policies as provided herein, and the terms and conditions of Your Account as provided herein and/or the most current version of Your Account’s Terms of Services as posted in Your Account’s Site, if any, all as may be amended from time to time. Triapodi agrees to notify You of any security breaches which become known to Triapodi related to Users information in its control.
(b) The representations, warranties and covenants under this Section 5 do not apply to any infringement, misappropriation or violation arising solely or materially from: (i) Users’ information gathered and/or provided to Triapodi by You; (ii) alterations, modifications, or adaptations to the Services and/or to any Engine by anyone other than Triapodi; (iii) any implementation, use or application of the Services and/or to any Engine generated by or for You, except to the extent such infringement, misappropriation or violation existed in such Services and/or Engine as provided to You by Triapodi; (iv) the use of the Services and/or of any Engine in combination with products and/or information not provided by Triapodi; or (v) Your failure to implement a revision and/or amendment to the Services and/or any Engine supplied by Triapodi before such infringement, misappropriation or violation, which if implemented, would have avoided all or any of the aforementioned.
(c) The provision of the Services, as well as the performance of its respective undertakings under this Agreement and the consummation of the transactions contemplated thereby have been duly authorized by all requisite corporate action on its part and shall not result in a breach of, or constitute a default under, any formation or organization documentation, by-laws or agreement to which it is a party or that is otherwise applicable to it.
(d) It has all requisite corporate power and authority to enter into, and fully perform pursuant to, the Agreement.
5.2 You represent, warrant, and covenant to Triapodi as follows:
(a) You are aware that the collection and use of the Collected Information is an integral element of the Services and You expressly consent to such collection by Triapodi and/or to and use in accordance with Triapodi’s privacy policies as provided herein and as such may be amended from time to time.
(b) You are aware that the Engines promote Content, which are an integral element of the provision of the Services and You expressly consent to Triapodi’s activities under this Agreement in accordance with Triapodi’s privacy policies as provided herein and as such may be amended from time to time, and subject to its own applicable legal and/or contractual requirements, and that the provision of the Content by third parties to Triapodi.
(c) You hereby acknowledge that You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Collected Information. You represent and warrant that You are aware that Triapodi shall use the Collected Information as an essential and integral element of the Services and You expressly consent to such use in accordance with Triapodi’s privacy policies, as such may be amended from time to time. You further represent, warrant, and covenant that the Collected Information is, at all times, lawfully licensed and/or otherwise gathered and/or used by Triapodi in compliance with its privacy policies and subject to its own applicable legal requirements, and the gathering and use of the Collected Information and the receipt by Triapodi thereof do not and will not, in any way violate, infringe upon or misappropriate rights, including, without limitation, any contractual, employment, privacy and/or personal identifiable data, intellectual property or proprietary rights or rights of authorship and/or any other rights related to any third party’s or Your privacy.
(d) You undertake to distribute Your engine/site/service/application or to provide any of Your services which include or refer to Triapodi’s API or which have embedded the SDK, subject to an end user license agreement that explicitly disclaims all warranties and liabilities on behalf of Triapodi and prohibits decompilation and reverse engineering.
(f) You are aware that as a condition of Your access to the Services, You expressly agree that Triapodi has the right to retain the Collected Information and to use such information for up to six months in order to improve the overall quality of its services. Notwithstanding the aforesaid, Triapodi may share Collected Information with third parties if it believes in good faith that such disclosure will either (a) facilitate compliance with any law regulation or any requirement of any governmental authority, including, for example, compliance with a court order or subpoena, or (b) protect the safety or security of any person or property, including without limitation Triapodi. Triapodi may also disclose Collected Information upon a transfer or sale to another entity of all or substantially all of Triapodi’s stock or assets. In such events, Triapodi will use commercially reasonable efforts to prevent such third parties from disclosing Collected Information.
(g) You acknowledge that, notwithstanding the security of the Collected Information being important to Triapodi and Triapodi following generally accepted standards to protect the information submitted to it (both during transmission and once Triapodi receives it), no method of transmission over the Internet or method of electronic storage is 100% secure. Therefore, Triapodi cannot guarantee its absolute security.
(h) You hereby acknowledge that if you are dissatisfied with any aspect of the Services provided or with Triapodi’s performance, at any time, your sole remedy is to cease using same. Furthermore, upon any termination of the Agreement and/or any cessation of the provision of the Services and/or following any written request by Triapodi’s, you will immediately delete and/or uninstall SDK, Triapodi’s API and/or all copies of any material related to the Services, the SDK and/or Triapodi’s API from your engine/site/service/application.
(i) The opening of Your Account and the solicitation for Services, as well as the performance of Your respective undertakings under this Agreement and the consummation of the transactions contemplated thereby have been duly authorized by all requisite corporate action on Your part and shall not result in a breach of, or constitute a default under, any formation or organization documentation, by-laws or agreement to which You are a party or that is otherwise applicable to You.
(j) You have all requisite corporate power and authority to enter into, and fully perform pursuant to, the Agreement.
5.3 DISCLAIMER OF OTHER WARRANTIES. EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS STATED IN SECTION 5 ABOVE, TRIAPODI DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
6 LIMITATION OF LIABILITY
6.1 EXCEPT TO THE EXTENT THAT LIABILITY ARISES FROM: (A) A PARTY’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT; (B) INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (C) A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 7 HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT (WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE) FOR LOSS OF PROFITS, REVENUE, OR LOSS OR INACCURACY OF DATA, OR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 EXCEPT TO THE EXTENT THAT LIABILITY ARISES FROM INSTANCES OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR FROM A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 7 HEREIN, EACH PARTY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY, SHALL IN NO EVENT EXCEED THE FEES PAYABLE FOR THE SERVICES THAT GIVE RISE TO THE LIABILITY.
6.3 In no event shall the total liability of Triapodi, under any theory, arising out or related to this Agreement or to the Services exceed USD 1.00.
7. Proprietary Rights
(a) Except as otherwise expressly provided in this Agreement, all Proprietary Information disclosed under and/or in connection with this Agreement and all physical or electronic embodiments thereof, are confidential to and are and will remain the sole and exclusive property of Disclosing Party and shall not be used or disclosed by Recipient except as necessary to perform the Services or as agreed upon in writing by the Disclosing Party, provided that any disclosure will be made only in accordance with the provision of this Agreement. You further agree that unless expressly provided otherwise, no right, title, license or ownership is granted with regard to any programming, material, data, code, tool or any other work incidental to the Services, including all source code and materials provided by Triapodi (if and to the extent provided) and/or embedded in Your engine/site/service/application as requested by Triapodi, which shall be owned solely, completely and exclusively by Triapodi.
(b) Each party shall implement and maintain those operational, technical, and organizational security measures at least as stringent as those utilized to protect its own Proprietary Information and in any case shall exercise at least a reasonable degree of care in order to protect the Proprietary Information of the other party, against accidental, intentional, and/or unlawful destruction, alteration, unauthorized disclosure, and access.
(c) Disclosure of Proprietary Information by the Recipient may be made only to employees, agents or independent contractors of the Receiving Party who have a specific need to know such information for the purpose of exercising Recipient’s rights under this Agreement (each, a “Representative“), and provided that such Representatives are bound by written confidentiality and non-use undertakings towards Recipient which are at least as restrictive as those in this Agreement.
(d) The covenants of confidentiality and non-use set forth herein will apply after the Effective Date to any Proprietary Information disclosed by either party to the other and will continue and be maintained by the parties for a period of five (5) years after the termination of this Agreement.
(a) Triapodi reserves the right to modify or discontinue the Services at any time and for any reason or for no reason. Either party to this Agreement may terminate this Agreement at any time, and for any reason or for no reason, by submitting the other party a thirty (30) days prior written notice of termination. Nonetheless, either party to this Agreement may terminate this Agreement: (i) immediately, if the other party has committed a material breach of its obligations under this Agreement; and/or (ii) upon the institution of bankruptcy or insolvency proceedings by or against the other party, if such proceedings are not dismissed within thirty (30) days of commencement.
(b) Upon any termination of this Agreement, Triapodi will cease providing the Services and You will immediately delete and/or uninstall the SDK, Triapodi’s API and/or all copies of Triapodi’s API and of the Code and/or any material related to the Services, the Code and/or Triapodi’s API from all of Your engine/site/service/application.
(c) This Section 8 and Sections 1, 2 (h), 5, 6, 7, and 9-11 shall survive the termination or expiration of this Agreement.
9. Force Majeure
“Force Majeure Event” means any act or event that (a) prevents a party (the “Nonperforming Party“) from performing its obligations or satisfying a condition to the other party’s (the “Performing Party“) obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, or insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this Paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event..
10. Governing Law, Jurisdiction, and Venue
The laws of the State of Israel (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. The parties expressly agree that neither the Uniform Computer Information Transactions Act, or any state’s version thereof, nor the United Nations Convention on Contracts for the International Sale of Goods apply to this Agreement. Except as set forth in the following Paragraph, any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Tel Aviv-Jaffa, Israel, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the venue of any legal action or proceeding arising out of or relating to this Agreement brought in any court sitting in Tel Aviv-Jaffa, Israel; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
Any notices required by this Agreement shall be delivered to You by certified mail or by email at the addresses and/or email listed in Your Account and/or through Your Account and any notices required by this Agreement shall be delivered to Triapodi by certified mail at Ackerstein Towers, 9 Hamenofim Street, P.O.B. 2136, Herzliya Pituach 46120, Israel or by email at [email protected] (provided however that messages delivered by email after recipient’s working hours or during any holiday, shall be deemed to have been given on the next working day after transmission).