Terms of Service

Last Updated March 7, 2019

PUBLISHER TERMS OF SERVICE AGREEMENT

 This Publisher Terms of Service Agreement (“Agreement”), is made by and agreed to between Soleo Communications, Inc. (“Soleo”) a Delaware corporation with a business address of 209 High Point Drive, Victor, NY 14564; an d you (“You”, “Publisher” or “Registrant”) and shall govern the relationship between the Parties with respect to the services (“Service”) defined under this Agreement. The terms set forth in this Agreement, including the Privacy Policy, any applicable Order Forms, addendums, statements of work, or other agreements which are later incorporated by reference into this Agreement constitutes the entire understanding and agreement between Soleo and Publisher with respect to the Service and supersedes all prior oral and written communications. Soleo and Publisher are sometimes hereinafter referred to each as a “Party” or collectively as the “Parties”. 

SOLEO PROVIDES THE SERVICE SOLELY ON THE CONDITION THAT PUBLISHER ACCEPTS AND COMPLIES WITH THIS AGREEMENT. BY CHECKING THE "ACCEPT” [OR SIMLAR LANGUAGE BOX] ON THE REGISTRATION PAGE, PUBLISHER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND REPRESENTS AND WARRANTS THAT PUBLISHER HAS FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, REGARDLESS OF WHETHER PUBLISHER IS AN INDIVIDUAL, CORPORATION, LIMITED LIABILITY COMPANY, OR OTHER LEGAL ENTITY. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE WHICH PUBLISHER CHECKS THE “ACCEPT” BOX.

SOLEO RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT, AT ITS DISCRETION, AT ANY TIME. ALL CHANGES SHALL BECOME EFFECTIVE IMMEDIATELY UPON POSTING. PUBLISHER UNDERSTANDS AND AKNOWLEDGES THAT IT IS RESPONSIBLE FOR PERIODICALLY CHECKING THE SITE FOR ANY MODIFICATIONS TO THE TERMS OF THIS AGREEMENT. PUBLISHER’S CONTINUED USE OF THE SERVICE AFTER A CHANGE TO THE TERMS OF THIS AGREEMENT IS POSTED SHALL CONSTITUTE ACCEPTANCE OF THE UPDATED TERMS BY PUBLISHER.

For all account support related inquires, Publisher may contact Soleo at the following email address: localsearchapisupport@soleo.com.

 1.          Definitions

1.1                “Account" means the account created when the Publisher completes the online Registration including all of Publisher’s contact information and an email address that Soleo may use to communicate with Publisher.

1.2                "Account Share" means Publisher sharing any of its Account information [including Credentials] with any other person or entity, including affiliate entities. Account Sharing is strictly prohibited.

1.3                “Advertiser” means any of the advertisers, national brands, DSPs and other programmatic advertising platforms providing Advertising Inventory on Soleo’s network.

1.4                “Advertising Inventory” means any of the advertisements being offered by an Advertiser. Also referred to as “Sponsored Content”.

1.5                "Agreement" means collectively this Publisher Terms of Service Agreement and all Related Documents.

1.6                "API" means one or more application program interfaces, each of which is a software interface that makes it possible for application programs to exchange data. Publisher’s access to Soleo’s API is part of the Service.

1.7                "Application" means private or public-facing internet-based website(s), mobile application(s) or other mediums operated by Publisher through which Content is distributed to End Users via the Service.

1.8                “Call Inventory” means Publisher’s call traffic sourced from its Application(s).

1.9                "Content" means all Sponsored Content or Organic Content provided by Soleo to Publisher and End Users as part of the Service. Content may be changed, updated, or deleted by Soleo at any time and for any reason.

1.10             "Credentials" means one or more unique security keys, tokens, passwords, or other credentials provided by Soleo to Publisher after Registration allowing Publisher to access its Account.

1.11             "Documentation" means any technical documentation relating to, or for use in connection with, the Service that Soleo provides, or makes available, to Publisher. Soleo reserves the right to revise Documentation at any time.

1.12              "End User" means an end user of an Application.

1.13             "Order Form" means a form completed by Publisher and Soleo that includes details related to the Service [including payments terms] and once signed by both Parties is binding and incorporated by reference into the Agreement.

1.14             “Organic Content” means the business listing information in Soleo’s proprietary database, including, business name, address, city, state, zip code, phone number and business category.

1.15             “Publisher” means a publishing affiliate, search engine or other online publisher, programmatic publishing platform or other publishing entity that generates and/or has access to Call Inventory.

1.16             "Registration" means the process where the Publisher completes the online registration process to obtain an Account and access the Service.

1.17             "Related Documents" means the Order Forms or any other supplemental written agreements executed between the Parties related to the Service, each of which is incorporated herein by reference.

1.18             "Service" has the meaning described in Section 3 of this Agreement.

1.19             “Sponsored Content” means any of the advertisements being offered by an Advertiser. Also referred to as “Advertising Inventory”.  

1.20              "Usage Requirements" means any technical specifications and/or requirements Publisher must adhere to in order to utilize the Service.

2.          Registration and Service Credentials

2.1                To access and use the Service, Publisher must create an Account through the online Registration. Publisher agrees it will not Account Share its Account. Account Sharing is considered a material breach of this Agreement. In the event of actual or suspected Account Sharing by Publisher, Soleo may suspend Publisher’s access to the Account or terminate the Account and this Agreement.

2.2                Following successful Registration by Publisher, Soleo will issue Publisher Credentials to access the Services and manage Publisher’s Account.  Publisher may not sell, transfer, sublicense or otherwise disclose its Credentials to any other party, including, but not limited to, affiliate entities. If Publisher becomes aware of any unauthorized use of its Credentials, it shall notify Soleo immediately. Notwithstanding anything to the contrary herein, Publisher shall be responsible for all activities that occur in relation to the use of its Credentials. Publisher is responsible for ensuring that Publisher’s account information [contact name, phone number, email address, etc.] is accurate at all times. Publisher’s failure to provide and maintain accurate account information may result in Soleo terminating Publisher’s ability to use the Service.

3.          Service

3.1                Publisher will have access to and use of Soleo’s APIs in order to interface with Soleo’s network. 

3.2                If applicable, Soleo will match its Sponsored Content, in designated categories and geographies, to Publisher’s Call Inventory in an attempt to monetize each call as “billable” in accordance with the terms agreed to by the Parties in the Order Form. Publisher understands and agrees that Soleo offers no guarantee on the level of call completion or gross revenue related to any of Publisher’s Call Inventory routed to Soleo’s network. 

3.3                If applicable, Soleo will provide Publisher with access to Organic Content which Publisher can display on its Application(s) in accordance with the terms of this Agreement and Order Form(s). 

3.4                If applicable, Soleo will provide customized solutions for Publisher allowing access to Organic and/or Sponsored Content on Publisher’s Application(s) [e.g. white labeling Soleo’s search services or allowing use of Soelo’s widgets] in accordance with this Agreement and Order Form(s).  

3.5                Soleo reserves the right to release subsequent versions of the Service, or subsequent versions of any portion of the Service, and to require Publisher to use the most recent version.

3.6                Soleo may, in its discretion, set and enforce limits on Publisher’s use of the Service (including, but not limited to, type of Content, limiting the number of queries Publisher can make or limiting Publisher’s number of API keys). This will be captured in the Order Form.

4.          Publisher Obligations

             Publisher shall:

4.1                Interface with Soleo’s network using the API documentation provided by Soleo, including support for any testing, system updates, or other administrative functions required to ensure proper interface with Publisher’s platform.

4.2                Route its Call Inventory to Soleo’s network in accordance with the terms of the Order Form and allow Soleo to purchase Call Inventory.

4.3                If applicable, display Sponsored Content and/or Organic Content through Publisher’s Application(s), but only in the same manner it was provided to Publisher by Soleo.

4.4                Comply with Usage Requirements and Documentation.

4.5                Ensure all Applications are designed to access and use the Service and display Content only as permitted by pursuant to the terms of this Agreement.

5.          Soleo Obligations

             Soleo shall:

5.1                Provide the API interface instructions to Publisher and notify Publisher of any system updates.

5.2                Generate a standard daily call activity report for Publisher.

5.3                Supply and maintain all Soleo hardware and software required to provide the Service.

5.4                Designate employees [or contractors] and other resources it determines, in its sole discretion, are sufficient to provide the Service.

6.          Term and Termination 

6.1                This Agreement shall commence as of the Effective Date and shall continue thereafter for a period of twelve (12) months (“Initial Term”) and will automatically renew for successive periods of twelve (12) months (each, a “Renewal Term”), unless earlier terminated pursuant to this Section. As used in this Agreement, “days” shall mean calendar days unless otherwise indicated herein. Together, the Initial Term and any Renewal Term shall be the (“Term”).  

6.2                Either Party may terminate this Agreement for convenience upon thirty (30) days advance written notice to the other Party.

6.3                Notwithstanding anything above, Soleo may terminate this Agreement for cause, effective upon written notice to the Publisher if Publisher:

(a)                 discontinues use of the Service for more than thirty (30).

(b)                 fails to remit any payments owed to Soleo within the time specified in the Order Form.

(c)                 breaches any of the confidentiality obligations owed to Soleo.

(d)                 materially breaches this Agreement.

(e)                 becomes insolvent or admits its inability to pay its debts generally as they become due.

(f)                  becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law.

6.4                Notwithstanding anything to the contrary, Soleo reserves the right to suspend Publisher’s access to Soleo’s platforms and the Service at any time in order to: (a) prevent damage to, or degradation of Soleo’s network integrity; (b) comply with any law, regulation; court order, or other government request; or (c) otherwise protect Soleo from any potential or actual legal liability or financial hardship.

7.          Call Quality Disputes and Reporting

7.1                Soleo will refuse payment to Publisher for any Call Inventory provided by Publisher under the following conditions: 

(a)                 Duplicate calls from the same number within any thirty (30) day window;  

(b)                 The caller was dialing the wrong number;   

(c)                 There was no caller on the line when the call reached Soleo’s platform;  

(d)                 The call was made by a robot or other machine (otherwise known as a “Robocall”); or 

(e)                 Fraudulent call; knowingly made by a person with no intention of completing a transaction with the business associated with the number they dialed. 

7.2                Soleo reserves the right to raise any other disputes with Publisher that it may have in relation to the Call Inventory. 

7.3                Soleo shall generate a daily [month-to-date] report (the “Publisher Call Activity Report”) with details of all Call Inventory sent by Publisher to Soleo’s platform, including the duration for each call. Publisher is responsible for reviewing the Publisher Call Activity Report, and Publisher must, within five (5) days, raise any disputes it may have related to the call activity listed in the Publisher Call Activity Report. If Publisher fails to raise any disputes within the five (5) day time-frame, they shall be deemed waived. Soleo shall investigate any disputes raised by Publisher, and the Parties agree to work in good faith to resolve any disputes. 

7.4                Soleo reserves the right to disclose Publisher as the source of the Call Inventory for any call quality disputes raised by any Advertiser in Soleo’s network [related to the Call Inventory supplied to the Advertiser]. 

 8.          Fees and Payments

8.1                 The Parties will agree upon Fees and Payment Terms for the Service in one or more Order Forms.

8.2                Fee arrangements may vary based on the manner in which the Publisher is utilizing the Service.

8.3                Soleo’s reports shall govern with respect to any Fees owed by either Party.

8.4                If payment is due to Soleo, then Soleo shall generate an invoice to Publisher for all Fees incurred [in the month] within ten (10) days of month end. 

8.5                If payment is due to Publisher, then Publisher shall generate an invoice to Soleo for all Fees incurred [in the month] within ten (10) days of month end. 

8.6                All payments shall be made in US dollars either by check or in the form of ACH using the information provided in the applicable Order Form. 

8.7                Soleo may encounter chargebacks or collection issues with some of its Advertisers in relation to the Call Inventory provided by Publisher. In this situation, Soleo reserves the right to withhold, reduce or offset payments to Publisher to account for such chargebacks or collection issues.

9.          Taxes

9.1                To the extent a jurisdiction subjects the transactions under this Agreement to sales tax, the Parties agree to the collection and payment of sales tax. Sales tax shall be separately stated as tax on each invoice; provided, that in no event shall Soleo pay or be responsible for any taxes imposed on, or with respect to, Publisher's revenue, income, personnel, real or personal property, or other assets. Notwithstanding anything to the contrary, Soleo will not be responsible for payment of any taxes Publisher fails to properly invoice.

9.2                To the extent any deficiency is found, Publisher shall be responsible for and indemnify Soleo against any applicable federal, state, or local use, excise, sales or other taxes, fees, assessments, or similar amounts ("Taxes") in connection with any transactions under this Agreement. Publisher shall pay all Taxes directly to the taxing authority unless the taxing authority requires that Soleo collect and remit payment, in which event Publisher shall pay these amounts to Soleo and Soleo shall remit these amounts to the authority.

10.       Non-Exclusivity This is a non-exclusive Agreement.  Nothing in this Agreement prevents Soleo from offering or receiving similar Services to or from other parties, including direct competitors of Publisher.

11.       Employee Non-Solicitation During the Term of this Agreement, and for a period of six (6) months thereafter, Publisher agrees not to solicit, induce, or attempt  to solicit or induce  any officer, director, or employee of Soleo or any of its subsidiaries, successors or assigns to terminate his, her, or its employment or other  relationship with Soleo or its subsidiaries, successors or assigns or otherwise  encourage any such  person  or entity  to leave  or sever his, her, or its employment or other relationship with Soleo or its subsidiaries, successors or assigns  for any reason. In the event that Publisher does so directly or indirectly contract with such affiliate or in any other way violates this Agreement then Soleo shall be entitled to compensation equal to the recruiter 's fees plus six (6) months of compensation at the affected employees' base salary.

12.       Licenses and Use

12.1             Subject to the terms and conditions of this Agreement the Parties hereby grant to each other a freely revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable, limited right to access, use and interface with each other’s platforms related to the provision of the Service. 

12.2             Publisher shall use its limited license to: (i) integrate Soleo’s API with Publisher’s Application to allow Publisher to query the Content and (ii) display the Content to End Users through Publisher’s Application. Soleo grants the license on the condition that queries from the Application to the API shall only be made to further an End User's query, and that under no circumstances will Content provided through the Service be: (i) purchased separately by Publisher and End User, (ii) provided as a packaged file to Publisher or End User, or (iii) altered in any way by Publisher.  

12.3             Subject to the terms and conditions of this Agreement, Soleo hereby grants to End Users a revocable, non-exclusive, non-transferable, non-sublicensable non- assignable, limited license to access and use the Content provided by Publisher through its Application solely for End User’s personal use. Commercial use of the Content by End Users is strictly prohibited. End Users may not publish, offer, sell, license, transmit, distribute, reproduce, cache, store, or modify Content in any manner. End Users shall be subject to the terms of this Subsection and all other terms outlined in Section 15; Prohibited Use. Publisher shall clearly and unambiguously communicate such terms to End Users and shall obtain End User’s agreement to such terms via the Application.

13.       TCPA Compliance Publisher agrees not to engage in any deceptive or abusive telemarketing practices, as defined by the Federal Trade Commission’s Telemarketing Sales Rule (16 CFR Part 310). Publisher agrees that Soleo is under no obligation to pay for, and will not pay, for, any calls/leads derived from violations of the Telemarketing Sales Rule (the “TSR”) or the Telephone Consumer Protection Act (15 USC §§ 6101 et seq., the “TCPA”), or similar statutes under state or federal law (the "Telemarketing Claims"). Should any claimant make a written demand on a Telemarketing Claim that was originated by Publisher or by any subcontractor through Publisher, that liability for the Telemarketing Claims shall rest solely with Publisher. For any such Telemarketing Claims, Publisher agrees to indemnify, defend, and hold harmless Soleo and Soleo's clients and all persons related to such indemnified entities.

14.       Call Recording 

14.1             Publisher understands and agrees that telephone calls and the resulting telephone conversations associated with any campaign under this Agreement may be subject to monitoring and/or recording, and review for quality assurance purposes. Publisher consents to the recording of such telephone conversations in connection with this Agreement, and Publisher agrees to obtain any necessary consent of, and provide any necessary notice of such recordings to: a) its relevant employees or agents, b) consumers, c) End Users, or d) other third-parties, as needed to comply with all applicable federal, state and local laws. 

14.2             In limited circumstances, for quality assurance purposes, Soleo may share [in a secure manner] these telephone recordings, or limited excerpts thereof, with Publisher. In such case, Publisher agrees that the telephone recordings are considered Confidential Information, as defined in this Agreement, and shall be used by Publisher solely for quality assurance purposes in a manner that is consistent with the intent of this Agreement. Additionally, Publisher agrees to delete, from its files, records, or other means of storage, any telephone recordings it receives from Soleo within thirty (30) days of receipt. 

15.      Prohibited Use

 15.1  Publisher shall not, and shall not permit or authorize any third-party, to engage in any prohibited conduct in relation to the Service or when interfacing with any platform owned or operated by Soleo in relation to this Agreement, including, but not limited to:

(a)                 directly or indirectly generate queries, impressions, or interactions obtained through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual calls, the use of robots or other automated query tools and/or computer-generated search requests, nor offer to pay, or provide other financial incentive to any third-party for any such conduct;

(b)                 play, display or provide any content on any media platform, that contains any pornographic, hate-related, violent, or illegal content;

(c)                 obscure, conceal, alter, or attempt thereof, to alter the source of any information transmitted to or through the Service or on Soleo’s platform;  

(d)                 “crawl,” “spider,” “scrape”, index, warehouse, or in any non-transitory manner store or cache information obtained from Soleo’s platform;

(e)                 copy, modify, or create derivative works or improvements of the Service;

(f)                  rent, lease, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Service available to any third-party, in whole or in part;

(g)                 use the Services for customer lead generation, sales research, enriching, or cleaning Publisher’s own data, or the data of a third-party;

(h)                 reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Service, in whole or in part,

(i)                   bypass or breach any security device or protection used by the Service, or access or use the Service, other than by an authorized user account with his or her own then valid access credentials;

(j)                   create accounts by using false credentials, or altering credentials with false information;

(k)                 impersonate or attempt to impersonate Soleo, a Soleo employee or contractor, or any other person or entity;

(l)                   input, upload, transmit, or otherwise provide, to, from or through, the Service any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;

(m)               damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede the Service, or Soleo’s provision of services to any third-party, in whole or in part;

(n)                 remove, delete, alter, or obscure any trademarks, or any notices of copyright, patent, trademark or other intellectual property or proprietary rights from any of Soleo’s platforms or sites;

(o)                 access or use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of Soleo or any third-party;

(p)                 access or use the Service in any way which causes harm to Soleo or any third-party, including harm to minors, or which violates any applicable law;

(q)                 access or use the Services for purposes competitive analysis of the Services, the development, provision or use of competing services or products or any other purpose that is to Soleo’s detriment or commercial disadvantage; or

(r)                  make any representations or warranties about the Services to any third-party.  

15.2             Additionally, Publisher agrees that it shall not, and shall not authorize or encourage any third-party, to provide Soleo’s Content to any third-party for any purpose associated with the redistribution of such Content without Soleo’s prior written authorization.

15.3             Publisher shall not use the Content, or any portion thereof, to offer any product or service that competes, directly or indirectly, with the Service or display the Content on any site that disparages Soleo or its products or services. 

15.4             Publisher acknowledges that any attempted participation in, or violation of, the Prohibited Use, as defined in this Section, constitutes a material breach of this Agreement and that Soleo may pursue all applicable legal and equitable remedies against Publisher, including termination of this Agreement.

16.       Audit Rights Publisher must retain complete and accurate records relating to its obligations under the Agreement in a format that will permit audit. Such records shall be kept for a period of the greater of: (a) two (2) years or (b) the time required by law. Soleo will have the right, no more than once per calendar year, to have an independent public accountant (the “Auditor”) examine Publisher’s relevant books, records and accounts (including records contained in electronic format on computers or any electronic data storage device) for the purpose of verifying compliance with the Agreement. Each audit will be conducted at Publisher’s place of business (or such other agreed upon place) during normal business hours, and upon at least thirty (30) days prior written notice by Soleo. Soleo will pay all Auditor fees and expenses; provided, however, that Publisher will bear reasonable Auditor fees and expenses if the audit shows a discrepancy of four (4%) percent or more, or material non-compliance with the Agreement. Any amounts owed to Soleo as a result of the audit shall be paid by Publisher within thirty (30) days of conclusion of the audit.

17.       Confidentiality

17.1             Except as otherwise set forth in this Agreement, any information disclosed to Publisher about Soleo's products, services, pricing, business policies and practices, confidential intellectual property, trade secrets, third-party confidential information, or other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form, and whether or not identified as "confidential", is considered Soleo’s confidential information (collectively, "Confidential Information").

17.2             Subject to Section 17.1 above, Confidential Information shall not include information that: (a) is or becomes generally available to the public, other than as a result of Publisher’s breach of this Section; (b) is or becomes available to Publisher on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; (c) was in Publisher’s possession prior to Soleo’s disclosure hereunder; or (d) was or is independently developed by Publisher without using any Confidential Information.  

17.3             Publisher shall: (a) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as Publisher would protect its own confidential information, but in no event with less than a commercially reasonable degree of care; (b) not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to Publisher’s employees or representatives who need to know the Confidential Information to assist Publisher, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. 

17.4             If Publisher is required to disclose Confidential Information pursuant to an applicable law or order issued by a government agency or court of competent jurisdiction, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Soleo of such requirements to afford Soleo the opportunity to seek, at Soleo’s sole cost and expense, a protective order or other remedy.

17.5             Publisher shall be responsible for any breach of this Section caused by any of its officers, employees, or other representatives. Soleo may seek equitable relief (including injunctive relief) against Publisher and its officers, directors, employees, and other representatives to prevent the breach or threatened breach of this Section and to secure its enforcement, in addition to all other remedies available at law.

18.       Intellectual Property

18.1             All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other Confidential Information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product, and other materials that are delivered to Publisher under this Agreement, or that are prepared by or on behalf of Soleo in the course of performing Soleo’s obligations with respect to the Service shall be owned exclusively by Soleo. 

18.2             Any third-party trademark, service mark, logo, name, or trade name included in the Content, or otherwise accessible or viewable through Publisher’s use of the Service, is the property of the respective third-party owner.

18.3             Publisher agrees not to use or display any trademark, service mark, logo, name, or trade name belonging to Soleo or any third-party [related to the Service] without the owner’s consent or authorization.

18.4             Soleo shall retain all ownership rights and interest in all search requests and queries [and the information provided in such requests including any personally identifiable information of the End User] submitted to the Service by Publisher.

19.       Publicity Soleo may use Publisher’s name, logos, trademarks, service marks, trade names, or other indicia of source in any presentations, publicity or marketing materials, or client lists during the Term of this Agreement.

20.       Limitation of Liability; Force Majeure

20.1             IN NO EVENT SHALL SOLEO BE LIABLE TO PUBLISHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE], OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SOLEO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 

20.2             Without limiting the foregoing, Soleo not shall have any liability, nor be deemed to have defaulted or breached this Agreement for any failure or delay in performing any term of this Agreement resulting from any condition beyond the reasonable control of such Party, including but not limited to: acts of God, flood, fire, earthquake, explosion, governmental actions, war, acts of terrorism, riots or other civil unrest, embargoes, national or state emergencies, epidemics, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s work force),restraints or delays impacting carriers, inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown, or power outage.

20.3             REGARDLESS OF ANY STATUTE OF LIMITATIONS OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION PUBLISHER MAY HAVE ARISING OUT OF, OR RELATED TO, THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY, MUST COMMENCE WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE. IF NOT COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES, THE CLAIM OR CAUSE OF ACTION IS PERMANENTLY BARRED.

20.4             NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL SOLEO’S AGGREGATE LIABILITY, ARISING OUT OF OR RELATED TO ANY CLAIM MADE UNDER THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PUBLISHER [PURSUANT TO THIS AGREEMENT] IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

20.5             Each acknowledges that the provisions in this Section are an essential basis of the bargain between the Parties. Publisher specifically acknowledges that the exclusions and limitations of liability expressed on this Section are considered reasonable under the circumstances.

21.       Disclaimers of Warranty

21.1              TO THE FULLEST EXTENT PERMITTED BY LAW, SOLEO HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, SUITABILITY, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE SERVICE. SOLEO DOES NOT WARRANT THAT THE SERVICE WILL BE AVAILABLE WITHOUT INTERRUPTION, IN A TIMELY AND SECURE MANNER, OR WITHOUT ERRORS OR DEFECTS. TO THE FULLEST EXTENT UNDER APPLICABLE LAW, SOLEO IS PROVIDING THE SERVICE "AS IS", "WHERE IS", AND "WITH ALL FAULTS". THE WARRANTIES AND ANY ASSOCIATED REMEDIES EXPRESSED OR REFERENCED IN THIS AGREEMENT ARE EXCLUSIVE, AND ALL OTHERS ARE EXPRESSLY DISCLAIMED.  NO OTHER WARRANTIES, WRITTEN OR ORAL, ARE EXPRSSED OR IMPLIED BY SOLEO OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. 

21.2             Any links to third party websites are provided for Publisher’s convenience only. Soleo does not warrant or make any representation about the substance, quality, functionality, accuracy, fitness for a particular purpose, merchantability, suitability, or any other representation about any third-party website or its content. A link to a third-party website does not constitute sponsorship, endorsement, approval or responsibility for the third-party website. The conditions of use and privacy policy of any third-party website may differ substantially from Soleo's. Please review the terms of use and privacy policy of the third-party website carefully.

21.3             Any open source software made available by Soleo, whether through a Soleo website, a Soleo API, a third-party website, or any other method, is made available for Publisher’s convenience only. SOLEO DOES NOT WARRANT OR MAKE ANY REPRESENTATION ABOUT THE SUBSTANCE, QUALITY, FUNCTIONALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SUITABILITY, OR ANY OTHER REPRESENTATION ABOUT ANY OPEN SOURCE SOFTWARE.

22.       Representations and Warranties Each Party represents and warrants to the other that: a) it has all necessary right, power, and authority to enter into this Agreement, and to perform the acts required of it hereunder; b) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or organization; c) it has complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation any relevant data protection or privacy laws) in performance of any acts hereunder; d) entering into this Agreement does not breach any duty owed to a third-party or violate any rights of any third-party or entity, including, without limitation, rights of intellectual property, publicity, privacy, or other rights or duties under consumer protection, product liability, tort, or contracts theories; and e) the execution of this Agreement by its representatives whose signatures are set forth at the end of this Agreement have been duly authorized by all necessary corporate or organizational action.

23.       Indemnification Publisher agrees to indemnify, defend and hold Soleo, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (each an " Indemnified Person" and, collectively, "Indemnified Persons") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), directly arising out of, related to, or which may arise from, the breach of any term of this Agreement by Publisher (“Indemnifying Party”).

24.       Assignment Publisher may not assign this Agreement, or delegate or transfer any of its rights, interests or obligations herein without the prior written consent of Soleo.

25.       Severability If any term or part of this Agreement is found unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable. The remaining portions of this Agreement will remain in full force and effect. 

26.       Waiver and Modification

26.1             No waiver [by Soleo] of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed [by Soleo]. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege [by Soleo] arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege [by Soleo] hereunder preclude any other or further exercise thereof, or the exercise of any other right, remedy, power, or privilege.

26.2             SOLEO RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT, AT ITS DISCRETION, AT ANY TIME. ALL CHANGES SHALL BECOME EFFECTIVE IMMEDIATELY UPON POSTING. PUBLISHER UNDERSTANDS AND AKNOWLEDGES THAT IT IS RESPONSIBLE FOR PERIODICALLY CHECKING THE SITE FOR ANY MODIFICATIONS TO THE TERMS OF THIS AGREEMENT. PUBLISHER’S CONTINUED USE OF THE SERVICE AFTER A CHANGE TO THE TERMS OF THIS AGREEMENT HAS POSTED SHALL CONSTITUTE ACCEPTANCE OF THE UPDATED TERMS BY PUBLISHER.

27.       Entire Agreement

27.1             This Agreement [including any Related Documents] constitutes the sole and entire Agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, proposals, negotiations, agreements, representations and warranties, both written and oral, regarding such subject matter. 

27.2             Subject to Section 29, Governing Law and Venue, in the event of a conflict or ambiguity between the terms of this Agreement and the terms of any Related Documents pertaining to the Service, the terms of this Agreement will prevail over such Other Terms.

28.       Notices All notices required or permitted to be given under this Agreement ("Notices") shall be in writing, reference this Agreement, and be addressed, if to Soleo, to: Soleo Communications, Inc. 209 High Point Drive, Suite 300 Victor, New York 14564 Attention: General Counsel or by E-mail: legal@soleo.com, or to such other address that Soleo provides pursuant to this Agreement.  If a Notice is to be addressed to Publisher, it shall be in writing and addressed to the address or e-mail address provided by Publisher during Registration. All Notices shall be delivered by: a) U.S. Mail, return receipt requested, b) a nationally recognized overnight delivery service, or c) e-mail, return receipt requested. Notices shall be deemed delivered when received, as evidenced by a proof of delivery receipt. Notwithstanding the foregoing, Publisher agrees to accept Notices delivered by e-mail, whether or not a return receipt is requested, as long as the Notices are sent to the e-mail address provided by the Publisher. Publisher agrees to notify Soleo of any changes to its e-mail address.  

 29.       Governing Law and Venue This Agreement shall be construed and enforced in accordance with the laws of the State of New York. All actions and claims of any kind (whether at law, in equity, in contract, in tort, or otherwise), that may arise out of or relate to this Agreement, must be brought in a court of competent jurisdiction in Monroe County, New York. The Parties hereby irrevocably consent to the jurisdiction of such courts and hereby waive any objection which they may now or hereafter have to the venue, including any defense of inconvenient forum. Any claims arising under or related to this Agreement must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or similar proceeding. If Soleo is the prevailing party, it will be entitled to recover its reasonable attorney fees and costs.

30.       Waiver of Jury Trial The Parties acknowledge that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each Party irrevocably and unconditionally waives any right it may have to a trial by jury with respect to any legal action arising out of or relating to this Agreement, or the transactions contemplated hereby.

31.       Relationship of the Parties Each Party is an independent contractor under this Agreement, and it is not the intention of either Party to undertake a joint venture or to make either Party in any sense an agent, employee, or partner of the other. Neither Party has the authority to enter into an agreement of any kind on behalf of the other.

32.       No Third-Party Beneficiaries This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

33.       Successors and Assigns This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and assigns.

34.       Survival The provisions concerning confidentiality, fees, indemnification, representations and warranties, limitation of liability, disclaimers of warranty, taxes, governing law, and any other provision which by its nature is intended to survive expiration or termination, shall survive the expiration or termination of this Agreement.

35.       Headings The headings in this Agreement, and any Related Documents are for reference only and do not affect the interpretation of the terms herein.