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Digital Scirocco
- Traffic Providers Terms of Service 

    
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE REGISTRATION PROCESS, 
YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR 
USE OF DIGITALSCIROCCO, INC. ("COMPANY") SERVICE (THE "SERVICE"). THROUGHOUT THIS 
AGREEMENT, YOU SHALL BE REFERRED TO AS "CUSTOMER" AND IF YOU ARE ENTERING INTO 
THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT 
YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH 
CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS EMPLOYEES. 
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND 
CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.


1. Description of Service.
    Company agrees to deliver services that select content and place it on websites based on 
    the content of the Customer website and to provide javascript to Customer to enable 
    insertion of such content on the Customers web pages.  

2. Terms of Use.
    Customer agrees to limit the volume of content requests under this offer to 
    1000 (one thousand) page views per day during the free trial period.  If 
    Customer anticipates that its volume will exceed this number, please send 
    email or call Company Sales Representative as directed on the Company website.  
    
    Pursuant to this agreement: (i) Customer may use content provided by Company 
    ("Company Material") in an editorial manner only on its website or websites, 
    and Customer may not use Company Material for commercial, resale, trade, 
    packaging, promotional, advertising or merchandising purposes; (ii) Customer 
    may not reproduce Company Material in any secondary works; (iii) Customer may 
    not alter or manipulate Company Material beyond normal formatting enhancements 
    (for images, this includes normal image enhancements and cropping); 
    (iv) Customer will not obtain any ownership rights or copyright in any 
    Company Material by the issuance of the license contained in this Agreement; 
    and (v) Customer may not make Company Material available in any medium in a 
    manner intended to allow or invite persons to download or extract Company 
    Material.

3. Fees and Service Level.
    The current service is a Beta offering and is provided free of charge during the 
    free trial period. Customer will be notified at the end of the free trial period 
    and offered the opportunity to convert to for-fee service.

4. Service Disclaimers.
    Customer acknowledges the following:
      a) THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES 
        OF ANY KIND, EITHER EXPRESS OR IMPLIED. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR 
        IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS 
        FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE CONTENT AND SERVICES. 
        COMPANY DOES NOT REPRESENT OR WARRANT THAT THE CONTENT OR SERVICES ARE ACCURATE, 
        COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. COMPANY DOES NOT REPRESENT OR WARRANT 
        THAT THE SITE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 
        COMPANY IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY CONTENT PROVIDED THROUGH 
        THE SERVICE. WHILE COMPANY ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICE SAFE, 
        COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVER(S), 
        OR ANY CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD 
        USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND NEUTRALIZE VIRUSES, SPYWARE, MALWARE, 
        AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS.  
      b) IN NO EVENT SHALL COMPANY OR ANY OF ITS CORPORATE AFFILIATES, INDEPENDENT CONTRACTORS, 
        SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES 
        AND AGENTS, BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING 
        BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION 
        IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT 
        OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE SITE, THE SERVICES, THE 
        CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE OR SERVICE, 
        INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM 
        RELIANCE ON ANY INFORMATION OBTAINED FROM COMPANY, OR THAT RESULT FROM MISTAKES, 
        OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, 
        DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT 
        RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED 
        ACCESS TO COMPANY'S RECORDS, PROGRAMS OR SERVICES. COMPANY'S LIABILITY UNDER THIS 
        AGREEMENT IS LIMITED TO THE AMOUNT PAID TO COMPANY BY CUSTOMER DURING THE YEAR PRECEDING 
        THE ACT OUT OF WHICH LIABILITY AROSE.  COMPANY ACCEPTS NO RESPONSIBILITY FOR ACTUAL TEXT 
        AND OR MESSAGING DELIVERED IN THE INSERTED CONTENT AS IT IS ALL OWNED BY UNRELATED 
        THIRD-PARTIES.
      c) IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH 
        SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR 
        SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH\, IF KNOWN 
        BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
      d) Company does not guarantee any specific performance improvements will be realized by 
        the Customer's Client(s). 
      e) Company does not warrant that any particular third party source of content shall be 
        available in the future.  Company will attempt to keep Customer informed of any 
        serious problems that Company is made aware of that impact any of the content 
        inserted by the Company into Client(s) websites. Customer acknowledges that Company 
        may not become aware of changes to third-party resources, content or other that may 
        or may not affect the content inserted. 
      f) Company reserves the exclusive right, for the duration of this Agreement, to approve 
        or disapprove any integration strategies.

5. Warranties and Indemnification.
    Customer represents and warrants that (a) it has the right and ability to enter into and 
    perform this Agreement; (b) it has all rights necessary to display the content found on 
    its websites; (c) it shall comply with all applicable laws, statutes, and regulations in 
    the performance of this Agreement, and; (d) there are no outstanding disputes in connection 
    with the property rights, intellectual property rights or other rights in its websites.  
    The signatory of this Agreement represents and warrants to that he/she has the authority 
    to enter into this Agreement on behalf of Customer. Customer agrees to indemnify and hold
    Company harmless from any and all claims brought by any third party relating to its business 
    or Company's violation of the foregoing warranties, including but without limitation, 
    any and all demands, liabilities, losses, costs and claims including attorney's fees arising 
    out of injury caused by Customer's website, products/services, website content, material 
    supplied by Customer and violation of intellectual property rights.  Customer agrees to 
    indemnify Company from responsibility for problems/disruptions caused by third-party 
    services that Customer may use, such as merchant accounts, shopping carts, shipping, hosting 
    services, real-time credit card processing. Company shall provide Customer with prompt 
    written notification of any claim. Company may participate in the defense of the claims by 
    counsel of its own choosing, at its cost and expense.  While Customer will have the right 
    to defend and/or, at its option, settle and compromise, any claim, Customer shall not, 
    without the prior written consent of the Company, settle, compromise or consent to the 
    entry of any judgment with respect to any pending or threatened claim if such settlement 
    requires Company to take any action, refrain from taking any action, or admit any liability.

6. Confidentiality.
    Customer and Company acknowledge and agree that all documents and information related to 
    the development and delivery of Company services (the "Confidential Information") will 
    constitute valuable trade secrets of Company. Customer shall keep the Confidential 
    Information in confidence and shall not, at any time during or after the term of this 
    Agreement, without Company's prior written consent, disclose or otherwise make available 
    to anyone, either directly or indirectly, all or any part of the Confidential Information.

7. Intellectual Property.
    Company is the exclusive owner and shall retain all right, title, and interest in its 
    technology, its web site and all software and systems that it will utilize to provide 
    the service to Customer, including all intellectual property rights therein and thereto.  
    Company shall also own all information, data, compilations, processes and documentation 
    resulting from its provision of services to Customer.  Company does not grant to Customer 
    any right or license, express or implied, in its proprietary technology. All right, title 
    and interest to any feedback, or suggestions relating to an improvement of the service 
    conveyed to Company by Customer shall become the exclusive property of Company and Company 
    may disclose and/or use such for any purposes whatsoever, entirely without compensation 
    to Customer.

8. Independent Contractor.
    The parties are independent contractors and are not the legal representative or agents 
    of the other for any purpose and shall have no right or authority (except as expressly 
    provided in this Agreement) to incur, assume or create in writing or otherwise, any 
    warranty or assert control over any of the other's employees, who shall be responsible 
    for their own acts and omissions. Each party shall, at its own expense, during the term 
    of this Agreement and any extension thereof, maintain full insurance under any Workmen's 
    Compensation Laws effective in the state or other applicable jurisdiction covering all 
    persons employed by and working for it in connection with the performance of this Agreement, 
    and upon request shall furnish the other with satisfactory evidence of the maintenance of 
    such insurance. Each party accepts exclusive liability for all contributions and payroll 
    taxes required under Federal Social Security Laws and State Unemployment Compensation Laws 
    or other payments under any laws of similar character in any applicable jurisdiction as to 
    all persons employed by and working for it. Nothing contained in this Agreement shall be 
    deemed to create any partnership or joint venture relationship between the parties.

9. Term and Termination. 
    The term of this Agreement will commence upon the date signed below and shall continue in 
    perpetuity until terminated by either party upon ninety (90) days written notice to the 
    other party, except that in the event of non-payment, Company may terminate or suspend the 
    service by providing Customer ten (10) days advance written notice and right to cure.
  
10. Digital Millennium Copyright Act

    Company responds to notices of alleged copyright infringement. This page describes the 
    procedures related to allegations of infringement. The form of notice specified below 
    is consistent with the form suggested by the United States Digital Millennium Copyright 
    Act (the text of which can be found at the U.S. Copyright Office Website, 
    http://www.copyright.gov).
    Company's response to these notices may include removing or disabling access to 
    allegedly infringing Materials and/or terminating access. If we remove Materials or 
    terminate access in response to such a notice, we will make a good-faith attempt to 
    contact the party that uploaded such Materials so that they may make a counter 
    notification. 
Infringement Notification
To file a notice of infringement with us, please provide a written communication 
(by fax or regular mail -- not by email) that sets forth the items specified below. 
Please note that you may be liable for damages (including costs and attorneys' fees) 
if you materially misrepresent that infringe your copyrights. 
To expedite Company's ability to process your request, please use the following 
format (including section numbers):
Counter Notification
The law permits the publisher of the allegedly infringing Materials or a site administrator 
of an affected site to make a counter notification pursuant to sections 512(g)(2) and (3) 
of the Digital Millennium Copyright Act. When Company receives a counter notification, we 
may reinstate the complained-of Materials.
To file a counter notification, please provide a written communication (by fax or regular 
mail -- not by email) that sets forth the items specified below. Please note that you may 
be liable for damages (including costs and attorneys' fees) if you materially misrepresent 
that Materials are not infringing the copyrights of others. A sample counter notification may 
be found at www.chillingeffects.org/dmca/counter512.pdf..
To expedite our ability to process your counter notification, please use the following format 
(including section numbers):

11. General Provisions.

11.1 Entire Agreement.
    This Agreement contains the entire agreement between the parties relating to the subject 
    matter hereof and supersedes any and all prior agreements or understandings, written or 
    oral, between the parties related to the subject matter hereof. No modification of this 
    Agreement shall be valid unless made in writing and signed by both parties hereto.

11.2 Dispute Resolution.
    The validity of this Agreement and the rights, obligations, and relations of the parties 
    hereunder shall be construed and determined under and in accordance with the laws of the 
    State of Washington, without regard to conflicts of law principles.  In the event of any 
    controversy or claim arising out of or relating in any way to this contract, the parties 
    hereto shall consult and negotiate with each other and, recognizing their mutual interests, 
    attempt to reach a solution satisfactory to both parties. If they do not reach settlement 
    within a period of sixty (60) days, then either party may, by notice to the other party 
    demand mediation under the mediation rules of the American Arbitration Association.  If 
    settlement is not reached within sixty (60) days after service of a written demand for 
    mediation, any unresolved controversy or claim arising out of or relating to this contract 
    shall be resolved by arbitration in accordance with the rules of the American Arbitration 
    Association before a single arbitrator in Seattle, Washington.  The arbitrator shall render 
    a written opinion including findings of fact and law and the award and/or determination of 
    the arbitrator shall be binding upon the parties, and their respective administrators and 
    assigns, and shall not be subject to appeal.  Judgment may be entered upon the award of the 
    arbitrator in any court of competent jurisdiction. The expenses of the arbitration shall be 
    shared equally by the parties.  It is the intent of the parties that, barring extraordinary 
    circumstances, arbitration proceedings shall be concluded within ninety (90) days from the 
    date the arbitrator is appointed.  The arbitrator may extend this time limit only if failure 
    to do so would unduly prejudice the rights of the parties.  Failure to adhere to this time 
    limit shall not constitute a basis for challenging the award.  Consistent with the expedited 
    nature of arbitration, pre-hearing information exchange shall be limited to the reasonable 
    production of relevant, non-privileged documents, carried out expeditiously. 

    Subject to the dispute resolution provisions of this Agreement, the parties irrevocably 
    submit and consent to the exclusive exercise of jurisdiction and personal jurisdiction 
    over each of the parties by the federal and/or state courts in the State of Washington. 
    The parties hereby irrevocably waive any and all objections w to the laying of venue of 
    any such suit, action or proceeding brought in any such federal or state court in the 
    State of Washington.

    In the event any party to this Agreement employs an attorney to enforce any of the terms 
    of the Agreement, the prevailing party shall be entitled to recover its actual attorney's 
    fees and costs, including expert witness fees.

11.3 Binding Effect.
    This Agreement shall be binding upon and inure to the benefit of Customer and Company 
    and their respective successors and assigns, provided that Company may not assign any 
    of its obligations under this Agreement without Customer's prior written consent.

11.4 Waiver.
    The waiver by either party of any breach or failure to enforce any of the terms and 
    conditions of this Agreement at any time shall not in any way affect, limit, or waive 
    such party's right thereafter to enforce and compel strict compliance with every term 
    and condition of this Agreement.

11.5 Good Faith.
    Each party represents and warrants that it has acted in good faith, and agrees to 
    continue to so act, in the negotiation, execution, delivery, performance, and any 
    termination of this Agreement.

11.6 No Right to Assign.
    Customer has no right to assign, sell, modify or otherwise alter this Agreement, 
    except upon the express written advance approval of Company, which consent can be
    withheld for any reason.  Any attempt to do so without such approval shall be void.

11.7 Right to Remove Resources.
    In the event Customer fails to make a payment set forth on Exhibit A within the time 
    prescribed in Exhibit A, Company has the right to remove any services, notification, 
    educational material, or content under Company control until payment is paid in full.  
    Customer shall pay late fees of 1½% per month on all overdue amounts.

11.8 Use of Material for Promotional Purposes.
    Customer grants Company the right to list, reference or otherwise identify Customer 
    as a client of Company in Company's advertising and marketing and in this regard, 
    Company is entitled to provide summaries of the work performed for Client.

11.9 No Responsibility for Loss.
    Company will have no responsibility for any third party disrupting, intruding or otherwise 
    impacting the Customer or its Client(s).

11.10 Right to Make Derivative Works.
    Company will have the exclusive right to make derivative works from any of its work, 
    practices, coding, programming or other work performed or delivered to Customer pursuant 
    to this Agreement and Customer shall own no rights therein nor receive compensation therefor.

11.11  Identification of Company.
    Customer agrees that Company's name may be inserted into HTML code provided to Customer 
    and Customer shall not remove Company's code therefrom.