Legal Center

These Advertising Terms and Conditions (“Advertising TC”) are between DotFoods, Inc (“DotFoods”) and the entity placing an insertion order (the “Advertiser”). They govern the provision of advertisement placement services on Atlantic Food Waste Partner LLC (“Choco”)’s B2B food order management app and webtool, including its white label versions customized for distributors (the “Choco Software”). DotFoods and the Advertiser are referred to individually as “Party” and collectively as the “Parties”. 

By executing an insertion order (“IO”) referencing these Advertising TC, the Parties agree to be bound by the terms of this Advertising TC. The Advertising TC together with the applicable IOs executed between the Parties constitute the “Agreement”. This Advertising TC shall apply to every advertisement (“Ad(s)”) placed on Choco Software on the Advertiser’s behalf. 

1. Services

1.1 The Advertiser asks DotFoods to run one or more advertising campaigns (“Campaigns”) on the Choco Software. Each Campaign may include one or more Ads. The Parties shall mutually agree in writing on the timeline and on the placement of Ads for each Campaign. 

1.2 DotFoods shall ensure that the Ads are displayed on the Choco Software in accordance with the campaign specifics agreed in the respective IO signed between the Parties. The Advertiser acknowledges that execution of a Campaign may be subject to the prior approval of a distributor. If such approval may not be obtained or withdrawn, Parties will act in good faith to agree on an alternative Campaign.

1.3 DotFoods shall provide performance reports to the Advertiser at the end of a Campaign,, including key metrics such as impressions, clicks, and engagement rates. DotFoods shall decide on which metrics will be included in the reports in accordance with applicable laws and regulations, including but not limited to privacy and antitrust laws.

1.4 If a Campaign involves activities beyond the display of advertisements on Choco Software, such as sweepstake, the Advertiser shall be fully responsible for the organization of such Campaigns and their compliance with applicable laws. In case of a sample give-away, DotFoods may assume the delivery of the samples ordered on the Choco Software. Unless DotFoods has expressly assumed any obligations in an IO, the sole responsibility of DotFoods shall be limited to ensuring the display of the Ad and transmission of data to the Advertiser in accordance with this Agreement. The Advertiser agrees to defend and hold DotFoods harmless against any third party claims, fines, costs arising from such activities undertaken by the Advertiser. 

2. Fees and Payment Terms

2.1 As consideration for the Ad placement services, the Advertiser shall pay DotFoods the fees agreed in the IO or elsewhere between the Parties in writing. Unless expressly agreed otherwise in writing, the fees will be paid monthly based on the number of impressions delivered. All amounts are net amounts in US Dollars exclusive of taxes and the Advertiser shall be responsible for the payment of all applicable taxes (other than taxes based on DotFoods’s income).

2.2 Invoiced amounts shall be due within two weeks of the date on the invoice and paid by ACH. The Advertiser waives any dispute regarding invoices that are not notified within one month of the date on the invoice. Unless explicitly agreed otherwise, all fees paid under the Agreement are non-cancellable and non-refundable.

2.3 If fees are determined based on ad impressions or other metrics, such calculations will be exclusively based on the measurement systems and data recorded on the Choco Software, and not on those provided by the Advertiser or any third party.

2.4 In case of late payment, DotFoods reserves the right to charge interest at the maximum rate permitted by law and any actual reasonable collection costs. If such delay continues for more than two (2) weeks, DotFoods may remove the Advertiser’s Ads from the Choco Software and put future campaigns on hold until full amount is received.

3. Ads

3.1 The Advertiser shall provide DotFoods with all the assets, images, logos and information (“Ad Content”) necessary for the display of the Ad in a timely manner and in accordance with the editorial guidelines and technical specifications of the Choco Software. Delays caused by the Advertiser shall not entitle them to any refunds. If the Advertiser fails to provide the Ad Content in a timely manner, DotFoods may postpone the Ad Content delivery date up to fifteen (15) days and adjust the start date accordingly. If the Ad Content is not provided within this extended period, DotFoods reserves the right to terminate the IO without issuing a refund on the prepaid fees. 

3.2 DotFoods is not obliged to perform any legal or commercial review of the Ad Content, but it reserves the right to reject, remove or request modifications to any Ad Content that it deems unlawful, misleading, inappropriate or not aligned with the technical specifications or editorial guidelines applicable for the Choco Software, even after such Ad is published. If DotFoods rejects an Ad Content and the Advertiser is unable or unwilling to comply with the change requests, DotFoods reserves the right to cancel the Campaign without issuing a refund on the prepaid fees.

3.3 The Advertiser shall be solely responsible for the Ad Content and of any websites linked  from such Ad(s). The Advertiser warrants that: (i) all Ad Content (including the websites linked in the Ads) is accurate, non-deceptive and non-defamatory, (ii) the Ad Content (including the websites linked in the Ads) complies with all applicable laws, rules and regulations including but not limited to local, state and federal laws regarding advertising, unfair and deceptive advertising and unfair competition; (iii) the Advertiser holds all necessary rights, licenses and consents to use the Ad Content and provide such Ad Content to DotFoods for display on the Choco Software and (iv) that Ad Content does not violate any rights of any third parties, including but not limited to copyrights, trademarks, patents, trade secrets, rights of publicity.  

3.4 The Advertiser shall indemnify and hold DotFoods, its affiliates, employees, representatives and subcontractors harmless from and against any claims, losses, liabilities, damages, fines and expenses (including reasonable attorneys’ fees) arising out of or resulting from (i) the Advertiser’s breach of any representation or warranty made under this Agreement, (ii) any claims relating to the Ad Content (including  the websites linked in the Ads), Campaign or the Advertiser’s products or services, (iii) the Advertiser’s violation of applicable laws, (iv) negligence or willful misconduct of the Advertiser. 

4. IP and Data 

4.1 The Advertiser and/or its licensors own all the rights in the Ad Content and the Advertiser hereby grants DotFoods a non-exclusive, royalty-free and worldwide license to use, copy and display the Ad Content on the Choco Software. DotFoods is further granted the right to sublicense these rights to its subcontractors for the performance of its obligations under the Agreement.

4.2 The Advertiser acknowledges and agrees that nothing in this Agreement grants  the Advertiser any rights or licenses in or to the Choco Software. If any assets are prepared for the Advertiser under this Agreement, the Advertiser shall have a limited right to display them on the Choco Software. Use of these assets outside of the Choco Software is prohibited unless explicitly agreed to in writing.

4.3 The Advertiser’s name and logo may be used in the marketing materials, presentations and similar communications to promote the marketing partnership between the Advertiser, DotFoods and Choco. The Advertiser may revoke this consent any time by giving prior written notice; however such revocation shall not affect any use made while the consent was in effect

5. Limitation of Liability

5.1 DotFoods warrants that it has the right to enter into this Agreement to sell advertisement space on Choco Software and will provide advertising services in a professional and workmanlike manner. Except for this limited warranty, DotFoods, its affiliates and its subcontractors expressly disclaim all other warranties and representations, express or implied, including but not limited to any warranty of merchantability, fitness for a purpose, title or non-infringement. DotFoods does not warrant or guarantee that Ad will achieve any results, meet any performance metrics (such as number of impressions, conversions, views or sales) or that the operation of the Choco Software (including the display of the Ads) will be uninterrupted, secure or error-free. 

5.2 To the fullest extent permitted under applicable law, the maximum aggregate liability of DotFoods (including its legal representatives, employees, agents, affiliates and subcontractors) arising out of or in any way connected to this Agreement will not exceed half of the fees paid to DotFoods under this Agreement during the twelve (12) months preceding the act, omission or occurrence giving rise to such liability. The Advertiser acknowledges that Choco is not a party to this Agreement and agrees not to assert any claims, demands, or actions against Choco in connection with the Campaigns, their placement, or performance.

5.3 To the fullest extent permitted by law, DotFoods (including its representatives, employees, agents, affiliates, and subcontractors) shall not be liable to Advertiser for any indirect, incidental, special, consequential, or punitive damages, including lost profits, substitute service costs, business interruptions, or data loss, even if advised of their possibility.

5.4 Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement (excluding payment obligations) if such failure or delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire or any other event beyond the control of such party.

5.5 Nothing in this Agreement will limit or exclude either party’s liability for gross negligence or willful misconduct.

6. Confidentiality

6.1 The Parties undertake to keep confidential any information and documents of the disclosing party, which shall be deemed confidential by their nature or disclosure circumstances ("Confidential Information") and to use them only for the purposes allowed under this Agreement. The confidentiality obligation begins upon receipt of the Confidential Information and continues for three years after the termination of this Agreement.

6.2 Confidential Information may be disclosed by the receiving party only (i) to its employees, affiliates, subcontractors or consultants on a need to know basis, provided that they are bound by the confidentiality obligations at least as protective as those contained herein, (ii) in a legal proceeding, (iii) where required by law, (iv) to third parties upon prior written approval of the disclosing party. In case of Confidential Information received by DotFoods, such information may be disclosed to Choco as necessary for the performance of the ad placement services.

6.3 Confidential Information does not include information that (i) was already known to the receiving party prior to disclosure, (ii) is generally known or becomes known to public through no fault of the receiving party, (iii) is independently developed by the receiving party itself without access to the Confidential Information of the disclosing party or (iv) was legally disclosed by a third party.

7. Term and Termination

7.1 This Agreement will take effect on the effective date of the first IO executed between the Parties and will remain in force until expiration or termination of the last IO agreed between the Parties. 

7.2 Except for breach due to non-payment, in which case the Agreement may be terminated by Dot immediately after a 2-week default period, the Agreement or any IO may be terminated by either party if the other party materially breaches any provision, warranty or representation of this Agreement and such breach is either not capable of cure or, if capable of cure, is not cured within 30 days after notice of breach. The termination of the Agreement shall automatically terminate all IOs that are in force at the time.

7.3 Each IO shall commence on the Effective Date indicated in the IO and shall remain in effect until all obligations under it have been fulfilled, at which point it shall automatically terminate, unless otherwise agreed in writing by the Parties. IOs are non-cancellable except in the event of a material breach by either Party and non-refundable except in the event of a material breach by DotFoods.

7.4 The indemnification obligations, section 2 (Fees and Payment Terms), section 5 (Limitation of Liability), section 6 (Confidentiality), section 7.4 (effect of termination) and others which by their nature are intended to survive, shall survive after termination or expiration of this Agreement.

8. Final Provisions

8.1 The Parties hereto are independent contractors and nothing herein establishes a partnership, joint venture, association, or employment relationship between the Parties and/or any exclusive course of dealing. 

8.2 DotFoods may amend these Advertising TC with future effect and notify the Advertiser in time for review. Amendments are deemed accepted unless the Advertiser objects before the amendments take effect. In case of objection, either Party may terminate this Agreement unless a mutual resolution is reached.

8.3 Except in connection with a merger, consolidation, reorganization, Advertiser may not assign the Agreement or transfer its rights or obligations under this Agreement without DotFoods’s prior written consent. DotFoods may assign this Agreement or any of its rights or obligations without Advertiser’s prior consent. In case of subcontracting, DotFoods will remain responsible for the acts and omissions of any subcontractors or affiliates.

8.4 This Agreement includes the Advertising TC and the signed IOs. It shall constitute the entire agreement between the Parties regarding the provision advertising services. The Agreement shall supersede any previous agreements and communications between them, whether written or oral, relating to this subject matter. In case of any conflict between the provisions of this Agreement, IO shall take precedence regarding business terms over the Advertising TC and the Advertising TC shall take precedence regarding legal and/or all other terms.

8.5 No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver, nor shall it prevent or restrict the further exercise of any right or remedy. If any part of this Agreement is determined to be invalid or unenforceable by a competent court, that part shall be deemed deleted, but this shall not affect the validity and enforceability of the rest of the Agreement.

8.6 This Agreement shall be governed by the laws of the State of Illinois and the Parties consent to the exclusive jurisdiction of the state and federal courts in Sangamon County, Illinois.