These Terms and Conditions are entered into between Solfo, Inc. (“Solfo”, “our”, “us”, or “we”) and the party executing the accompanying Insertion Order (the “Business,” “your” or “you”) which is attached hereto and expressly incorporated in these Terms and Conditions by reference. These Terms and Conditions supersede and replace all prior terms and conditions between the parties related to the subject matter hereof. These Terms and Conditions shall control all Insertion Orders (“IOs”) for Business’ advertising on Solfo, and together with each additional executed IO, shall be referred to collectively as the “Agreement”.
Subject to the terms and conditions of the Agreement and the applicable IO, Solfo shall display your advertising materials, which may include text, rich media, and/or graphic files (“Advertisements”) on the YellowBot web site (the “YellowBot Site”) and allow Business to access and use all merchant tools available on the YellowBot Site in accordance with the terms and conditions of this Agreement. The Business’ Advertisements and access to merchant tools shall be collectively referred to as the “Service”.
Business represents and warrants that all Advertisements delivered to Solfo for display on the Service will be free of Spyware, Adware or Drive-by Downloads applications. As used in this Section, (a) “Spyware” means any application that covertly gathers user data and transmits it through the user's Internet connection other than information (i) reasonably gathered in connection with services or information overtly provided by the application provider to such users, or (ii) that is not associated with personally identifiable information; (b) “Adware” means any application that (i) causes advertising to pop-up as a new window (over or under the active window) on the user's computer either randomly or based on the user's online activity (other than advertisements a web site serves to users to such site's own domain while those users are visiting or exiting such domain) or (ii) is used to distribute Spyware, in each case regardless of whether the end user consented to install such application; and (c) “Drive-by Download” means any software installation process or procedure initiated as the direct or indirect result of a page or Advertisement view unless the user receiving the download requested it by voluntarily clicking on a button containing words such as “download now” (or words of similar meaning) immediately prior to the initiation of such process or procedure (the user's consent must be given in response to a clear download offer; agreement by the user to proceed past a security warning, alone, is not sufficient).
“Confidential Information” means any and all information disclosed by one party to the other party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, customer lists, business plans, technical data, product ideas, personnel, contract and financial information, and the terms of this Agreement. This Agreement is deemed to be Confidential Information of both parties. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of the receiving party; (b) was in the receiving party's lawful possession prior to the disclosure and had not been subject to limitations on disclosure or use; (c) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (d) is lawfully disclosed hereafter to the receiving party, without restriction, by a third party who did not acquire the information directly or indirectly from the disclosing party. Each party agrees that, except in connection with the performance of its obligations under this Agreement, it will not otherwise use in any way for its own account or the account of any third party, nor disclose to any third party, any Confidential Information revealed to it by the other party. Notwithstanding the foregoing, Confidential Information may be disclosed pursuant to a regulation, law, court order or rule of any applicable securities exchange (but only to the minimum extent required to comply with such regulation, order, or rule and with advance notice to the disclosing party). Each party shall take commercially reasonable efforts to protect the confidentiality of the other party's Confidential Information, such precaution not to be less than the precautions each party takes to protect the confidentiality of its own Confidential Information. The terms of this Agreement are deemed Confidential Information and may not be disclosed without the other party's prior written approval. Furthermore, Advertiser understands and agrees that Solfo’s list of advertisers, whether derived directly from Solfo or otherwise is Solfo’s Confidential Information. Notwithstanding the foregoing, either party may disclose the Confidential Information of the other party to the extent such party is legally compelled to do so, provided that the party required to make such disclosure will (y) provide the other party with prompt written notice of such disclosure so that the party whose Confidential Information may be disclosed has the opportunity if it so desires to seek a protective order or other appropriate remedy; and (z) disclose only such information as is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
Each party represents and warrants to the other party that (a) it has all necessary rights and authority to enter into this Agreement and grants the rights and licenses thereunder, and (b) the execution of this Agreement and any IO, and the performance of their respective obligations and duties thereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound. Business warrants and represents to Solfo that (a) the marketing and sale of the products and services promoted in the Advertisements is lawful, (b) the products and services promoted in the Advertisements do not infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party, (c) in the case of promotion of age restricted products such as tobacco or alcohol, no such product will be sold to a consumer who does not have the required age, and (d) the Advertisements, the use and display thereof, and the content linked to from such Advertisements will not (i) infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party, (ii) be misrepresentative, libelous, defamatory, obscene, pornographic, or otherwise inappropriate, or (iii) violate any applicable law or regulation. If Business executes an IO on behalf of a third party advertiser as an agency, or if Business transfers or assigns to a third party advertiser its rights to display Advertisements on all or a portion of the Service under an IO, Business hereby represents and warrants to Solfo that such third party advertiser(s) (“Third Party Advertisers”) are contractually bound in writing by all terms of the Agreement and as such are subject to all duties and restrictions applicable to Business hereunder and all representations and warranties made by Business hereunder. In furtherance of the foregoing, Business agrees to indemnify, defend and hold harmless Solfo and its respective agents, affiliates, subsidiaries, directors, officers, employees, and contractors from and against any loss, cost, claim, injury or damage (including reasonable attorneys' fees) resulting from claims or actions arising out of or in connection with any Third Party Advertiser breach of this Agreement.
Except as expressly set forth in this Agreement, neither party makes and each party expressly disclaims all warranties, express or implied, as to the subject matter of this Agreement, including implied warranties of merchantability and fitness for a particular purpose. Solfo shall not be liable for any unavailability or inoperability of the internet, technical malfunction, computer error, corruption or loss of information. Solfo makes no warranty as to the NUMBER OF IMPRESSIONS THAT WILL BE DELIVERED, the number of persons who will access the advertisements, or the benefit Business will obtain as a result of such advertisements under this agreement. EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, OR INTENTIONAL MISCONDUCT BY THE PARTIES, in no event shall either party be liable for lost profits, lost revenues, or any indirect, incidental, consequential, special or exemplary damages arising out of or related to this Agreement, even if such damages are foreseeable and whether or not the other party has been advised of the possibility of such damages. EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, OR INTENTIONAL MISCONDUCT BY THE PARTIES, in no event will either party's TOTAL AGGREGATE liability hereunder exceed the payments due or received from Business in the 6 months preceding the event giving rise to the claim.