The following Terms of Service (the “Terms of Service“) shall govern the implementation and use of the Somplo Service made available by Somplo to the Client identified in the Insertion Order. Unless otherwise defined, capitalized terms used in these Terms of Service shall have the meanings given to them in the Insertion Order.
Somplo Icon Logo (advertising Option Icon)
Somplo reserved the right to automatically add in all of the client campaigns and demos, a small “powered by” Somplo icon logo, in one of the ad units corners. The Somplo icon logo will floating on top of the campaign creative, at a size no larger than 20px * 20px, and the icon logo area will link by user click to Somplo website.
Client Logo / Name (among our clients…)
Somplo reserved the right to automatically add in the client name / logo to Somplo marketing materials, presentations, website and so on, for marketing and sale purpose as a list of “Among our Clients / Partners”.
Personal Data and GDPR
And so, by using any of Somplo services or products you the client confirm on behalf of your company that as of May 25, 2018, your company will be fully compliant with GDPR. Any custom pixel injections, changes, modifications, to our services / products and Tag output is completely forbidden, and the client will be the sole responsible.
Nothing in this Agreement shall be deemed as transferring the intellectual property rights from one Party to the other, and nothing shall be deemed to grant to the Client any right or license to use the Intellectual Property of Somplo. Somplo and the Client each retain all of its rights, titles and interests including all Intellectual Property Rights relating to the Somplo Service and/or products of the Somplo Service. The Client shall not, directly or indirectly, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, copy, rent, lease, license, assign or attempt to compete with or otherwise attempt to derive source code from the Somplo Service. Somplo shall retain all Intellectual Property Rights relating to the Somplo Service or any related software used in order to supply the Somplo Service. The Client shall retain all Intellectual Property Rights in its data and /or media used in scope of the Somplo Service. The Parties will not, directly or indirectly, take actions to contest and/or infringe the other Party’s Intellectual Property Rights.
For purposes of this Agreement, the Term “Intellectual Property Rights” shall mean all intangible legal rights, titles and interests connected or related to: patents, patentable inventions, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, improvements, modifications and reexaminations thereof, computer programs, software, databases, trademarks and service marks (registered and unregistered), domain names, copyrights, know how, or trade secrets (and the right to limit the use or disclosure thereof), work of authorship, and all other proprietary rights, industrial rights and any other similar rights, in each case on a worldwide basis, and all copies and tangible embodiments thereof, or any part thereof, in whatever form or medium
Each of the Parties may disclose from time to time during the term of this Agreement (the “Discloser”) certain Confidential Information (as defined below) regarding the Discloser, to the other Party (the “Recipient”). The Confidential Information may be disclosed in oral, written, graphic, machine recognizable and/or any sample form, tangible or intangible. Information will be deemed to be Confidential Information whether such information is marked as “Confidential” or “Proprietary” upon its disclosure if it is confidential or proprietary information by its nature. The Confidential Information shall not be copied, reproduced, reversed engineered or otherwise disassembled in any way, manner or form by the Recipient. The Recipient undertakes as follows: (i) to use the disclosed Proprietary Information only as permitted by the Discloser in writing; and (ii) to keep the Confidential Information in strict confidence and trust, at the same degree of care and under the same security precautions as for its own similar information, but in any event at not less than a reasonable degree of care; and (iii) to segregate all such Confidential Information from its own confidential information; and (iv) to restrict dissemination of the Confidential Information only those employees of the Recipient who are required to know such information, and each of such persons shall be directed and required to maintain the disclosed information in confidence at all times hereafter and agree to keep such information confidential, and agree to be bound by the terms of this Agreement to the same extent as if they were a party; and (v) Not to disclose the Confidential Information to any third party without the express written consent of the Discloser;
Notwithstanding the above, information shall not be deemed Confidential Information if: (i) it is or becomes publicly known through no act or omission of the Recipient or on its behalf; or (ii) the Recipient can prove that it is already known to the Recipient or independently developed by the Recipient without any use of or reliance upon the Confidential Information, as shown by the Recipient’s files and records; or (iii) required to be disclosed pursuant to law, provided, however, that the Recipient shall give prompt and prior written notice thereof to the Discloser enabling Discloser to seek an appropriate protective order; or (iv) is explicitly approved for release by prior written authorization of the Discloser.
Nevertheless, the Client hereby grants Somplo a free, non-exclusive license to use any aggregated information collected as a result of using the Somplo Service for any purpose.
For purposes of this Agreement, the Term ” Confidential information“, shall mean any and all proprietary and/or trade secret information disclosed in oral, written, graphic, machine recognizable and/or any sample form, tangible or intangible or provided by a Discloser or on its behalf, and/or that is claimed or marked by the Disclosing as proprietary or confidential to it, or any other information which is Confidential or Proprietary Information by its nature, whether patentable, registered, or under any other statutory protection or not, including, but not limited to, information on its patent applications and files, products, formulae, know-how, hardware, software (regardless of the media on which it may be recorded), inventions, procedures, designs, specifications, electronic circuits, drawings, schematics, dimensions, processes, instruction manuals, practices, parameters, communications, manufacturing information, financial status, markets, customers, suppliers, plans, sales, quality control, organizations, employees, general business condition and other proprietary data, materials or information, now existing or which will exist in the future and which shall be disclosed and/or come into the knowledge of the Receiving Party during the term of this Agreement. The term “Proprietary Information” shall also include any third party Proprietary Information that has been provided to the Recipient by the Discloser and any Proprietary Information disclosed to the Recipient prior to the execution of this Agreement
Representations and Warranties
Each party hereby warrants, represents and covenants that: (i) it has the right, power and authority to enter into and perform its obligations under this Agreement, and this Agreement constitutes a legal, valid and binding obligation on its part, enforceable against it in accordance with its terms; (ii) execution, delivery and performance of this Agreement by such party will not result in the breach of any terms of, or constitute a default under, or conflict with any obligation of such party.
In addition, the Client warrants towards Somplo that: (i) the Client will not knowingly authorize or otherwise permit any exposer of the Somplo Service and / or Platform to Malicious Content; and (ii) that to the best of the Client’s knowledge any data and /or advertisements uploaded and used via the Somplo Service and the Platform is and will remain free of any viruses and Malicious Content.
For sake of this Somplo Insertion Order, the term “Malicious Content” shall be defined as any downloadable software or malicious code, content or links to web sites that contain content (or further links to content) which are illegal, defamatory, obscene, or hateful data, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
Except otherwise expressly mentioned in the Agreement, to any possible legal extent, the Somplo Service is supplied by Somplo on a “AS IS” basis without warranties of any kind, whether oral or written, expressed or implied.
Somplo or its subsidiaries, affiliates, directors or employees will not be liable to the Client or its affiliates for any indirect, special, incidental, consequential or other damages (including lost profit, lost data, or downtime costs), arising out of this Agreement, whether based in contract or other legal theory, and whether or not advised of the possibility of such damages. The Client warrants that it has been informed that the use of the Somplo Service may not be continuous or error-free or without interruption or that any information provided within the Somplo Service is accurate or complete, and the client hereby disclaims any demand and/claims he may have in this area.
Limitation of Liability
Somplo is not liable for direct, indirect, incidental, consequential, special, punitive, exemplary, or any other damages (collectively, the “damages“), arising out of your use or inability to use the Somplo Service. By way of example and not of limitation, Somplo is not liable for damages for: (i) loss of revenue, anticipated profits, business, savings, goodwill or data, (ii) any failure of performance, error, omission, denial of service attack, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, and (iii) third party theft of, destruction of, unauthorized access to, alteration of, or use of the Client’s information. The Client specifically acknowledges and agrees that Somplo is not liable for the conduct of and information supplied by other third parties and that the risk of injury from the foregoing rests entirely with the Client.
Notwithstanding the above, if Somplo is found to be liable by a final judicial ruling, Somplo’s liability to the Client or to any third party shall be limited to the Service Fees actually paid by the Client to Somplo for use of the Somplo Service in scope of the specific campaign in which the Client encountered issues with the Somplo Service, which resulted in this request of compensation from Somplo.
The Client shall indemnify, defend, and hold Somplo harmless from and against all damages and liabilities that arise from a third party’s claim resulting from the Client’s use of the Somplo Service by violation of the terms of this Agreement or from any violation caused by the Client of applicable law.
Somplo assumes no liability for the Client’s use of the Somplo Service, and the Client expressly acknowledges and agrees that use of the Somplo Service is at its own risk. Somplo will not be liable for any damages or injuries to any persons or resulting from any cause whatsoever.
The Parties’ relationship under this Agreement shall be that of independent contractors. Neither Party shall have, nor shall either Party represent that it has, any power, right or authority to bind the other Party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other Party or in the name of the other Party, except as expressly provided herein. Nothing in this Agreement shall be construed as implying that the parties to this Agreement are partners or as creating relationships of employer/employee, or principal/agent between the Parties.
The Client may not assign or transfer this Agreement or any rights and obligations under this Agreement without the written consent of Somplo. Any such purported assignment shall be void.
Any clause, provision, or portion of this Agreement found or ruled invalid, void, illegal or otherwise unenforceable under any law or by any court, arbitrator, or other proceeding, shall be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof.
Governing Law and Jurisdiction
This Agreement is governed by and construed exclusively in accordance with the laws of the State of Israel without regard to the principles of conflict of laws. Any and all disputes and controversies arising out of or in connection with the Agreement shall be brought exclusively before the competent courts in Tel Aviv, Israel.
The foregoing represents the complete and exclusive statement of the Agreement between the Parties and supersedes any and all prior oral or written agreements, proposals, commitments, understandings, or communications with respect to the subject matter of this Agreement except in respect of fraudulent misrepresentation made by either Party. This Agreement may only be amended by an instrument in writing signed by both Parties.
This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party, it being understood that all Parties need not sign the same counterpart.
Any waiver of any right or default hereunder shall be effective only if made in writing and in the instance given and shall not operate as or imply a waiver of any similar right or default on any subsequent occasion. No waiver by either Party of any breach or series of breaches or defaults in performance by the other Party, and no failure, refusal or neglect of either Party to exercise any right, power or option given to it hereunder or to insist upon strict compliance with or performance of either Party’s obligations under this Agreement, shall constitute a waiver of the provisions of this Agreement with respect to any subsequent breach thereof or a waiver by either Party of its right at any time thereafter to require exact and strict compliance with the provisions thereof.