Terms of Use

Last Revised: May 22, 2018

Overtok Ltd. (“Overtok”, we”, “our”, or the “Company”) welcomes you to use our website www.overtok.com (“Website”) and the Services (as defined below). The terms and conditions below govern your use of the Services and Website.

  1. Acceptance of the Terms

PLEASE READ CAREFULLY THESE TERMS AND CONDITIONS INCLUDING THE PROVISIONS OF THE PRIVACY POLICY AVAILABLE AT https://overtok.com/privacypolicy/ WHICH IS INCORPORATED BY REFERENCE HEREIN (THE “PRIVACY POLICY”, COLLECTIVELY THE “TERMS”). BY ACCEPTING THESE TERMS, YOU AGREE TO COMPLY WITH AND BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS. WHEN ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THESE TERMS, TO USE THE SERVICES AND THE  WEBSITE ON BEHALF OF SUCH ENTITY AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THESE TERMS SHALL REFER TO SUCH CONTRACTING ENTITY.

IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THESE TERMS, YOU MAY NOT USE THE SERVICES OR THE WEBSITE.

  1. Use of Services

Overtok Ltd. (collectively “Overtok”, “Company” “we” or “us”) develops and offers a proprietary technology enabling websites end-users real-time communication tool to connect with website operators who use the Overtok service via its proprietary Application Programming Interface (the “API”), licensed hereunder by Overtok to such operators and embedded into their website assets (the “Services”).

Access. In the event You wish to use and access the Services, You must subscribe through our Website by providing your email address and determine your personal username and password (“Login Credentials”) or, alternatively, subscribe through your social media account (i.e. your google account, Facebook account or twitter account) (“Single SignOn Account”). User may only access and use the Services through the Login Credentials or their Single SignOn Account and is responsible for maintaining the confidentiality of the Login Credentials or of the Single SignOn Account credentials. Any instruction, action or activity occurring through any such Login Credentials or Single SignOn Account, shall be deemed to be provided and/or taken by User, and You shall be responsible for all such activities, including for any unauthorized use of such Login Credentials.

Use. Subject to your compliance with the terms and conditions of the Terms, Overtok hereby grants to you a nonexclusive, revocable, non-assignable, non-transferable, non-sublicensable temporary, limited right to use the API solely in connection with your website for the purpose of evaluating the Services solely in your own business operations and subject to the terms contained hereunder. Pursuant to the aforementioned you may access the API and Services (collectively with any applicable documentation, the “Product”) via individuals who are authorized by you therefor in accordance with these Terms (“Authorized Users”). You may not use the Product for any personal or further commercialization purposes subject to the terms contained hereunder.

You will use all reasonable endeavors to prevent any unauthorized access to, or use of, the Product and, in the event of any such unauthorized access or use, promptly notify Overtok.

You shall ensure that each of your websites used in connection with the Product contains terms of use and a privacy policy that: (a) discloses the usage of third-party technology and the data collection and usage resulting from the Product; (b) contains a conspicuous live hyperlink to an opt-out web page that provides the End User the ability to opt out of its interaction with the Product; and (c) complies with all applicable laws, rules and regulation, including privacy and data protection laws. To the extent required by applicable law, rule or regulation, You shall provide Overtok, with respect to the provision of the Services and the use of the Product, a copy of your terms of use and privacy policy consistent with the foregoing requirements.

  1. Use Restrictions

There are certain conducts which are strictly prohibited when using the Product or our Website. Please read the following restrictions carefully.

You may not, whether by yourself or anyone on your behalf: (i) modify, alter, create derivative works from, reverse engineer, decompile, or disassemble any part of the Product or Website, nor attempt in any other manner to obtain the source code or otherwise reduce to human-perceivable form any part of the Product or Website; (ii) frame, mirror, republish, or distribute all or any portion of the Product or Website in any form or media or by any means; (iii) remove any proprietary notices, labels, or marks on or in any part of the Product, including without limitation any trademark or copyright notices; (iv) perform or disclose to any third party the results of, testing or benchmarking of the Product, or access or use the Product or any part thereof in order to build or support, and/or assist a third party in building or supporting, products or services which are competitive to Overtok’s; (v) use the Product to provide services to third parties; (vi) disseminate, distribute, disclose, or copy any printed documentation which accompanies the Product; (vii) copy, emulate, sublicense, rent, or lease any portion of the Product or Website; (viii) host, outsource, display, or commercially exploit the Product, or use the Product, as part of a facility management, timesharing, service provider, or service bureau arrangement; (ix) use the Product or Website in any manner not expressly authorized by these Terms; (x) attempt to obtain, or assist third parties in obtaining, access to the Product, the Services and/or documentation other than as expressly permitted hereunder; (xi) take any actions which (1) would disable the Product or Website or impair in any way its operation based on the elapsing of a period of time, the exceeding of an authorized number of copies, or the advancement to a particular date or other numeral (referred to as “time bombs”, “time locks”, or “drop dead” devices); or (2) would prevent Overtok to access the Product or the Website for the purposes of its operations or (xii) infringe or violate any of the Terms.

 

  1. Intellectual Property

 

You retain all ownership and intellectual property rights in and to Your Customer Data. You acknowledge and agree that Overtok and/or its licensors own all intellectual property rights in the Product and Website. Except as expressly stated herein, these Terms do not grant you or Authorized Users any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade-marks (whether registered or unregistered), or any other rights or licenses in respect of the Product or Website or to any other intellectual property of Overtok. The rights provided under these Terms are granted to you alone, and shall not be considered granted to any subsidiary or holding company of yours, unless expressly authorized in writing by Overtok.

 

In the event that you provide to Overtok any suggestions, comments and feedback regarding the Product, you hereby grant Overtok and its licensors a perpetual, irrevocable, worldwide, royalty-free, fully paid-up license grant to  freely use, have used, sell, modify, reproduce, transmit, license, sublicense (through multiple tiers of sublicensees), distribute (through multiple tiers of distributors), and otherwise commercialize such feedback in connection with the Product or related technologies.

 

  1. Your Obligations

You represent that during the Term, you shall: (i) be and remain exclusively responsible for all content, data and information provided via your website, and that all such content, data and information has been and shall be legally obtained, does not and will not infringe any third party rights, (ii) comply with all applicable laws and regulations with respect to your activities under these Terms, (iii) carry out all other responsibilities set out in these Terms in a timely and efficient manner, (iv) obtain and shall maintain all necessary licenses, consents, and permissions necessary for Overtok, its contractors and agents to perform their obligations under these Terms, (v) ensure that your network and systems comply with the relevant specifications provided by Overtok from time to time. Without derogating from any of the foregoing or from the provisions of Sections 11 and 12 below, you acknowledge and agree that in the event that the Product does not perform as required, specified, expected and/or desirable by you, your only recourse is to terminate the Terms in accordance with these Terms and Overtok shall not be liable to you or to any third party with respect thereto. You further acknowledge, represent and agree that your continued use of the Product following any such non-performance, will constitute your acceptance of, and agreement to continue to experience, such Product performance.

  1. Third Party Components

The Product and Website may use or include third party software, files and components that are subject to open source and/or other third party license terms (“Third Party Components”). Your right to use such Third Party Components as part of, or in connection with, the Product or Website is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and these Terms, the licensing terms of the Third Party Components shall prevail only in connection with the related Third Party Components. These Terms do not apply to any Third Party Components accompanying or contained in the Product or Website and Overtok disclaims all liability related thereto. You acknowledge that Overtok is not the author, owner or licensor of any Third Party Components, and that Overtok makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of Third Party Components. Under no circumstances shall the Product or Website or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source” or “publicly available” software.

  1. Indemnification

Overtok’s Indemnification. If a third party makes a claim against you resulting from your authorized use of the Product in accordance with these Terms, and such claim alleges that the Product infringes such third party’s intellectual property rights, Overtok, at its sole cost and expense, will defend you against the claim and indemnify you from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by Overtok, provided you do the following: (i) notify Overtok promptly in writing, not later than 30 days after you receive notice of the claim (or sooner if required by applicable law), (ii) give Overtok sole control of the defense and any settlement negotiations; and  (iii) give Overtok the information, authority, and assistance Overtok needs to defend against or settle the claim.

If Overtok believes or it is determined that the Product may have violated a third party’s intellectual property rights, Overtok may choose to either modify the Product to be non-infringing (while substantially preserving their utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Overtok may terminate your rights under the Terms and refund any unused, prepaid fees you may have paid for the Product. Notwithstanding anything to the contrary contained hereunder, Overtok will not indemnify or defend you if you altered the Product or used them outside the scope of use identified in the Terms, or if you used a version of the Product which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Product which was provided to you by Overtok. In addition, Overtok will not defend or indemnify you to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by Overtok, or (ii) any materials from a third party portal or other external source that is accessible to you within or from the Product (e.g., a third party web page accessed via a hyperlink. Overtok will not indemnify you to the extent that an infringement claim is based upon the combination of the Product with any products or services not provided by Overtok. Overtok will not indemnify you for infringement caused by your actions against any third party if the Product as delivered to you and if used in accordance with the terms of the Terms, would not otherwise infringe any third party intellectual property rights. This section provides your exclusive remedy for any infringement claims or damages.

Your Indemnification. You shall indemnify, defend, and hold Overtok (including its officers, employees, agents and affiliates) harmless from and against any claims, damages, losses, and liabilities incurred or arising from Your failure to comply with, breach or alleged breach of the terms and conditions hereof and/or included by references herein.

  1. Confidentiality

By virtue of the Terms or provision of the Product, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to only disclose information that is required for the performance of obligations under the Terms and to only use such information as required therefor. Confidential information shall be limited to the terms and pricing under the Terms, the documentation accompanying the Product, information relating to the technology and code contained in the Product, Your data, and all information clearly identified as confidential at the time of disclosure.

A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party without use of or reference to the Confidential Information.

We each agree to hold each other’s Confidential Information in confidence for a period of ten years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. Overtok will protect the confidentiality of Your data in accordance with the Privacy Policy. Nothing shall prevent either party from disclosing the terms or pricing under the Terms in any legal proceeding arising from or in connection with the Terms or from disclosing the Confidential Information to a governmental entity as required by law.

  1. Disclaimer and Warranties

Overtok warrants and represents that (i) the Product does not infringe upon the intellectual property rights of any third party, and (ii) the Product will substantially conform to the documentation provided by Overtok. This warranty shall not apply to the extent of any non-conformance which is caused by use of the Product contrary to Overtok’s instructions, or modification or alteration of the Product by any party other than Overtok or Overtok’s duly authorized contractors or agents. If the Product does not substantially conform to the documentation, Overtok will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the warranty set out above.

EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, YOU UNDERSTAND AND AGREE THAT THE PRODUCT WEBSITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR RELIABILITY. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT OVERTOK DOES NOT GUARANTEE THAT THE PRODUCT, THE WEBSITE OR THE PERFORMANCE OF THE SERVICES WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF ANY PROGRAM LIMITATIONS OR FAILURES, OR THAT THE PRODUCT OR WEBSITE AND/OR ANY FEATURE AVAILABLE THEREIN (WHETHER OR NOT CONFIGURABLE BY YOU) AND/OR ANY INFORMATION OBTAINED BY YOU THROUGH THE USE OF THE PRODUCT OR WEBSITE WILL MEET AND/OR PERFORM IN ACCORDANCE YOUR REQUIREMENTS, SPECIFICATIONS, EXPECTATIONS, CONFIGURATIONS AND/OR GOALS, OR THAT OVERTOK WILL CORRECT ANY OR ALL PRODUCT OR WEBSITE ERRORS, DEFICIENCIES AND/OR NON-PERFORMANCES. YOU ACKNOWLEDGE THAT OVERTOK DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE AND THE WEBSITE AVAILABILITY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. OVERTOK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

  1. Limitation of Liability

IN NO EVENT SHALL OVERTOK, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND ITS AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS RESULTING FROM OR ARISING OUT OF THE SERVICES, THE WEBSITE OR THE USE OR INABILITY TO USE THE PRODUCT, THE PERFORMANCE OR FAILURE OF OVERTOK TO PERFORM UNDER THESE TERMS, ANY OTHER ACT OR OMISSION OF OVERTOK BY ANY OTHER CAUSE WHATSOEVER; OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER OVERTOL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1. Amendments to the Terms

Overtok may change the Terms from time to time, at its sole discretion and without any notice. We will notify regarding substantial changes of these Terms on the homepage of the Website. Such substantial changes will take effect seven (7) days after such notice was first provided on our Website. Otherwise, all other changes to these Terms are effective as of the stated “Last Revised” date and your continued use of the Product or Website after the Last Revised date will constitute acceptance of, and agreement to be bound by, those changes.

  1. Termination

The Services provided under these Terms shall be provided for an undefined term until terminated in accordance with these Terms. All rights and licenses granted to you under this Agreement shall immediately terminate upon expiration or termination of the Term, and you shall cease all use of the Product, and delete and purge all traces of the Product from your systems and custody. The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced by the termination or expiration of the Term.

Termination for Convenience. Unless otherwise agreed between you and Overtok, either You or Overtok may terminate the rights granted hereunder to use the Product by giving 14 days’ written notice.

Termination for Breach. If either you or Overtok breaches a material term of the Terms and fails to correct the breach within thirty (30) days of written notice of the breach, then the non-breaching party may terminate the Services. In addition, Overtok may immediately suspend your access to the Product if you violate any provisions under Section 2, 3, 4  hereto or the Privacy Policy.

  1. Availability & Support

The availability and functionality of the Product and the Website depends on various factors, such as communication networks, software, hardware, service providers and contractors. Overtok does not warrant or guarantee that the Product and the Website will operate and/or be available at all times without disruption or interruption, or that it will be immune from unauthorized access error-free.

  1. Miscellaneous

These Terms shall not in any way be construed to constitute You or Overtok as an agent, partner, joint-venturer, employee or representative of the other, and both You and Overtok shall remain independent contractors. You may not assign the Terms or give or transfer the Product or an interest in them to another individual or entity. Each of You and Overtok intends that these Terms will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than You and Overtok. You agree that Overtok may publicly refer to You as its customer in sales presentations, marketing materials and press releases, and that Overtok shall be permitted to display your logo on Overtok’s Website page dedicated to display of Overtok’s customers. Each of You and Overtok will be excused for delays in performing or for its failure to perform hereunder (other than payment delays) to the extent that the delays or failures result from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of the delay or failure. No waiver by either you or Overtok of any breach of these Terms will constitute a waiver of any other breach of the same or other provisions of these Terms. No waiver by either you or Overtok will be effective unless made in writing and signed by an authorized representative of that party. These Terms (including reference to information contained in a URL or referenced policy), constitutes the entire agreement and understanding of you and Overtok relating to the subject matter hereof. These Terms supersedes all prior written and oral agreements and all other communications between Overtok and you. If any provision in these Terms is invalid or unenforceable in any circumstance, its application in any other circumstances and the remaining provisions of these Terms will not be affected thereby.

 

Governing Law. These Terms and any claim arising therefrom will be governed by and interpreted in accordance with the laws of the State of Israel, without regard to conflicts of laws and principles. Any and all actions brought to enforce or resolve any dispute arising out these Terms must be brought exclusively in courts having jurisdiction in Tel-Aviv-Jaffa, Israel and each party hereby consents to and agrees to submit to the exclusive personal jurisdiction and venue of such courts.

 

Compliance with Export Regulations. You have or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals (if applicable); and you shall indemnify and hold Overtok harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be provided herein. You shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws (e.g., in the U.S., Israel, the Bureau of Export Administration of the U.S. Department of Commerce).

 

European Union Residents. If You reside in the European Union (EU) or if any transfer of information between You and Overtok is governed by the European Union General Data Protection Regulation or other data privacy national laws, then You consent, and shall obtain any consent and approval required by applicable law, to the transfer of such information outside of the European Union to such other countries as may be required by Overtok in the scope of its operation of the Product and Website.

 

  1. For information, questions or notification of errors, please contact:

If you have any questions (or comments) concerning the Terms, you are most welcomed to send Overtok an e-mail at: info@overtok.com, and we will make an effort to reply within a reasonable timeframe.