These Terms of Service ("Agreement") apply to the solution and services provided by Solidify Ltd. (“Company”) to advertisers who signed a written insertion order with Company (“Advertiser” and “IO”, respectively):
Right to Use. Subject to the terms and conditions of this Agreement and the terms of the IO, Company hereby grants Advertiser and Advertiser accepts, a non-exclusive, non-sublicensable and non-transferable right to use the Platform internally for its intended purposes, and, once enabled, submit Offerings (defined below), during the applicable subscription term specified in the IO. "Platform" means the Company’s online proprietary platform for online campaigns for advertisers. All references herein to "Platform" shall also be deemed to include all related APIs and other features, code and technology made available by Company in connection therewith. Restrictions. Except as expressly permitted herein, Advertiser shall not, directly or indirectly: (i) sell, license (or sub-license), lease, assign, transfer, pledge, or share the Platform or Advertiser’s account on the Platform with or to any third party; (ii) use or permit the Platform to be used in order to perform services for third parties, whether on a service bureau or time sharing basis or otherwise; (iii) disclose, publish or otherwise make publicly available the results of any benchmarking of the Platform; (iv) use the Platform for purposes of competitive analysis or the development of a competing software product or service; (v) use the Platform in any manner that is prohibited by law, including without limitation, to sell, distribute, download or export the Platform or use the Platform in order to provide services: (a) into (or to a resident of or corporation incorporated in) Cuba, Iran, Lebanon, Libya, North Korea, Sudan or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S., Israel or any foreign agency or authority. Advertiser agrees to the foregoing and warrant that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; (vi) exceed any use limitations or other restrictions that are specified in the IO; (vii) contest Company’s Intellectual Property Rights (as defined below) to the Company IPR (as defined below); (viii) use the Platform for any purpose other than as permitted by this Agreement or attempt to access any part of the Platform or its servers without authorization or by unauthorized means; (ix) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Platform, such as features that restrict or monitor use of the Platform; or (x) cause or permit any third party to do any of the foregoing. Advertiser is solely responsible for acquiring and maintaining all of the hardware and software necessary to access and make use of the Platform.
Advertiser may create offerings on the platform for certain achievements related to Advertiser’s applications, websites and content (e.g. install an application, purchase a product, play a certain amount of time, reach a certain level in a game, add a product to the shopping cart etc.) (“Offerings”). The Offerings will be allocated by the Platform to Talents, who may promote such Offerings on social media and other platforms using a designated landing page. Advertiser hereby grants Company, during the Term, a sublicensable license to all content included in its Offerings in order to make them available to Agencies and Talents as set forth herein. Company shall not be responsible for the acts or omissions of the Talents, but merely provides the Platform for the Advertiser’s and Talent’s convenience. Advertiser warrants and represents that it is authorized to provide to Company all of the information it provides. “Talent” shall mean a third party content creator or influencer who the Advertiser may engage for Offerings, campaigns or content creation.
The budget for Advertiser’s Offerings campaign shall be as set forth in the IO. The budget may be increased by mutual agreement in writing (approval by email will suffice). Advertiser shall allocate a price out of the budget for each fulfilled Offering and Company shall allocate such price between incentives to Talents, incentives to users and its own commission. Company may exceed the budget by up-to 15%, in which case Advertiser shall pay such excess in addition to the spend out of the agreed budget. Unless otherwise specified in the IO, all amounts invoiced herein shall be due and payable within thirty (30) days of the end of the month during which Company provided an invoice. All amounts payable under this Agreement are exclusive of all taxes and duties of any kind, all of which shall be borne by Advertiser. If Advertiser is required to withhold or deduct any amount from any payment under this Agreement, Advertiser shall gross-up the payment such that after the withholding or deduction Company shall receive full payment in the amount equal to the fees set forth in the IO. All payments not made when due shall bear interest at the rate of 1.5% per month, or at the highest interest rate allowed by law, whichever is lower.
Each party (“Receiving Party”) may have access to certain non-public or proprietary information or materials of the other party (“Disclosing Party”) whether in tangible or intangible form (“Confidential Information”). Without derogating from the foregoing, the Platform and terms of the Agreement and the IO shall be deemed as Confidential Information of Company. Receiving Party may use the Confidential Information solely for the purpose of exercising its rights under this Agreement. Receiving Party shall not disclose or make available the Confidential Information to any third party, except to its employees and consultants that have a need-to-know such information and that are bound by obligations at least as protective as provided herein. Receiving Party shall protect the Confidential Information using measures at least as protective as those taken to protect its own confidential information of like nature (but in no event less than a reasonable level of care). Receiving Party will promptly notify Disclosing Party in writing in the event of any actual or suspected unauthorized use or disclosure of any Confidential Information. Confidential Information shall not include: (i) information that was in the public domain at the time of disclosure or becomes in the public domain after disclosure not due to breach of this Agreement by Receiving Party; (ii) information that was already in the possession of the Receiving Party before disclosure herein; and (iii) information disclosed to Receiving Party by any third party who is not subject to confidentiality restrictions. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information that it is required to disclose pursuant to applicable laws or an order of any competent authority or court, provided that Receiving Party shall, if permitted by law, notify Disclosing Party in advance of such disclosure in order to enable Disclosing Party to seek confidential treatment or a protective order.
Advertiser shall retain all rights to content included in its Offerings. Company or its licensors retain all right, title, interest in and to the Platform, Feedback and all related documentation and Confidential Information and any modifications, improvements and derivatives thereof and all intellectual property rights thereto ("Company IPR"). This Agreement does not convey to Advertiser an interest in or to any Company IPR but only the limited right to use the Platform pursuant to Section 1 above.
Advertiser may provide Company with feedback regarding the Platform and its use, including without limitation suggestions, ideas, bug notes and user experience reviews (collectively, “Feedback”). Company may, at no cost, freely use such Feedback, for any purpose whatsoever and Advertiser hereby assigns all right, title and interest in and to all Feedback to Company upon creation thereof.
Company’s privacy policy is available at: https://www.solidify.io/privacy-policy
Company agrees to defend Advertiser from and against any and all third party claims alleging that the Platform infringe any intellectual property rights of a third party. Company shall indemnify Advertiser against any damages and losses finally awarded in judgment or settlement as a result of such claim, including reasonable attorney's fees. It is hereby clarified that Company shall not have liability or responsibility for any Offerings or for content provided by Advertiser.Advertiser agrees to defend Company from and against any and all third party claims: (i) alleging that any content provided by Advertiser or that Advertiser’s advertised products or services: (a) infringe the rights of any third party, including any intellectual property rights, (b) are illegal, violent, pornographic, obscene, defaming, misleading or promotes gambling or games of chance. Advertiser shall indemnify Company against any damages and losses finally awarded in judgment or settlement as a result of such claim, including reasonable attorney's fees.Indemnifying party’s indemnification obligation shall be subject to the following: (i) indemnified party provides written notice of the claim to indemnifying party promptly after becoming aware thereof; (ii) indemnifying party has sole control of the defense and settlement of the claim; and (iii) indemnified party shall provide reasonable assistance in the defense at indemnifying party’s expense.
HE PLATFORM IS PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PLATFORM REMAINS WITH ADVERTISER. COMPANY DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM. THE SUCCESS OF THE CAMPAIGN IS NOT GUARANTEED.
EXCEPT FOR FRAUD, WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY OR INDEMNIFICATION FOR THIRD PARTY INFRINGEMENT CLAIMS PURSUANT TO SECTION 8 ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS AFFILIATES, SHAREHOLDERS, SUPPLIERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES AND/OR LICENSORS (COLLECTIVELY, “AFFILIATES”) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION ANY LOSS OF BUSINESS, LOST PROFITS OR LOST OR DAMAGED DATA, SUFFERED BY ANY PERSON OR ENTITY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL COMPANY'S AND ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF PAYMENTS ACTUALLY MADE TO COMPANY FOR THE PLATFORM DURING THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
The term of this Agreement shall be as set forth in the IO and may be terminated earlier in accordance with this Section (“Term”). Either party may terminate this Agreement upon thirty (30) days’ written notice in the event of a material breach by the other party or if the other party becomes insolvent or enters into any bankruptcy proceeding or a similar proceeding, unless the other party remedies such breach or cause within the notice period.Upon termination or expiration of this Agreement: (i) the rights granted to Advertiser under this Agreement shall expire and Advertiser shall discontinue all further use of the Platform. Company does not provide back-up services, however, to Advertiser’s convenience, Company shall retain Advertiser’s content that existed on the Platform at the time of expiration or termination for thirty (30) days following expiration or termination in order to enable the Advertiser to download such content; (ii) Advertiser shall pay in full all amounts due and owed to Company; and (iii) Advertiser shall, at Company's election, erase or return to Company all Confidential Information in its possession or under its control. Sections 1.2, 2-10, 11.3 and 12 shall survive any termination of this Agreement.
This Agreement shall be construed and governed by the laws of Israel, without regards to the conflict of law provisions therein. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by the competent courts in Tel Aviv-Jaffa, Israel, and each party hereby submits itself to the exclusive jurisdiction of these courts. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement represents the entire agreement between Advertiser and Company regarding the subject matter herein and may be amended only by a written agreement of both parties. Company may collect, retain, use and transfer aggregate data regarding use of the Platform without any restrictions. To the extent any conflict arises between the terms and conditions of this Agreement and those contained in the IO, the terms and conditions contained in this Agreement shall prevail. The failure of either party to enforce any rights granted herein or to take action against the other party in the event of any breach herein shall not be deemed a waiver by that party. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Advertiser may not assign its rights or obligations under this Agreement without the prior written consent of Company. Company may assign its rights and obligations under this Agreement to an affiliate or in connection with a merger, consolidation, reorganization or sale of all or substantially all of its assets.
