LICENSE AND SERVICES AGREEMENT
Opt It, Inc. ("Opt It," "we" or "us") owns
proprietary technology that allows its clients to send certain mobile messages
as well as a proprietary application program interface (the "API") that enables communication
between third party software or other technologies as specified by Opt It and the
Opt It Technology, as further defined below. Opt It also
makes available Widgets (defined in Section 1.10 below) that can be posted on
third party platforms by clients to collect Subscriber Data in connection with
use of the Opt It Services.
This Opt It
License and Services Agreement ("Agreement")
sets forth the terms and conditions by which Opt It permits you ("You" or "Licensee") to access and utilize certain technologies
provided by Opt It, including, without limitation, the API and any Widget (collectively,
the "Opt It Services").
In some instances,
a written document (each, a "Statement of Work") will further describe the
Opt It Services and the applicable Fee (defined in Section 10 below) and will
be effective when signed by an authorized representative of both parties. Each Statement of Work will be governed
by the terms of this Agreement and such Statement of Work is incorporated
herein by this reference. In the
event there is a conflict between this Agreement and a Statement of Work, this
Agreement will control unless otherwise expressly set forth in the Statement of
Work naming the section to be amended in that instance. No Licensee purchase orders, invoices or
other business forms will modify, supersede or otherwise alter the terms of
this Agreement or a Statement of Work.
Also, in some
instances, this Agreement and separate agreements or terms of use that set
forth additional conditions, rights and obligations ("Additional Agreements") will apply to your relationship with Opt It.
To the extent there is a conflict between this Agreement and any Additional
Agreements, this Agreement will control unless the applicable Additional
Agreement expressly states that it will control over this Agreement. No Licensee purchase orders, invoices or
other business forms will modify, supersede or otherwise alter the terms of an
Additional Agreement.
1. Definitions. The
following definitions apply to this Agreement:
1.1 "Wireless Carrier" means a wireless
telecommunications carrier that makes Mobile Messages (defined below in Section
1.5) available to its Subscribers (defined below in Section 1.7).
1.2 "Distributor"
means any third party that is billing Subscribers for access to Mobile Messages
or directly providing Mobile Messages to Subscribers, including, without
limitation, Wireless Carriers and text message aggregators.
1.3 "Licensee Application" means a
software application owned, operated, and/or developed by or on behalf of
Licensee that interacts with the API as permitted by Opt It.
1.4 "Licensee Content" means all
information, data, text, visuals, graphics, artwork, animation, video content,
audio content, photographs or other content or materials, including any updates
thereto, and where applicable, any source code comprised therein, provided by
Licensee (or one of its agents, representatives or affiliates) and incorporated
into a Licensee Application, Widget or Mobile Message (defined below in Section
1.5).
1.5 "Mobile Message"
means all SMS, MMS and other messages consisting of Licensee Content, which are
distributed and made available to Subscribers by Distributors.
1.6 "Opt It Technology"
means all technologies made available to Licensee by Opt It in connection with
the Opt It Services.
1.7 "Subscriber"
means a wireless carrier account holder and owner of a wireless device
associated with the account that sends or receives Mobile Messages.
1.8 "Subscriber Data" means all personally
identifiable information and non-personally identifiable information from or
about Subscribers related to Subscriber's access to and use of the Mobile
Messages, including, without limitation, Subscribers' mobile telephone numbers
and Mobile Message usage patterns.
1.9 "User Data"
means all demographic, transactional, personally identifying, and other
information, data, files or records pertaining to mobile phone users.
1.10 "Widget"
means a module of Opt It's software, in object code form, that can be installed
and executed and that displays content and other data served by Opt It.
2. Licenses.
a. Limited
License to Opt It Technology. Excluding
the API and subject to Licensee's compliance with this Agreement, Opt It grants
to Licensee a limited, nonexclusive, royalty free, revocable, nontransferable
license during the Term to use the Opt It Technology solely in connection with
the Opt It Services.
b. Limited
License to API. To the extent
that Licensee uses Opt It's API, the following
applies:
1. Opt
It grants Licensee a limited, nonexclusive, royalty free, revocable,
nontransferable license during the Term to use the API solely to: (i) run Licensee
Applications; and (ii) implement Widgets into web sites on which licensee has
the right to do so ("Licensee Web Sites")
(collectively, the "Permitted API Use"). The previous sentence notwithstanding,
Licensee understands that its access to the API will be subject to Opt It's
sole control and, accordingly, Opt It may limit or terminate Licensee's access
to the API at any time without notice to Licensee and without liability for Opt
It.
2. Opt
It may (in its sole discretion) provide to Licensee
confidential information to enable a Licensee Application to access Opt It's
application server for the Permitted API Use (the "API Access Information").
Licensee will comply with any documentation provided by Opt It in connection
with implementing the API. Licensee
agrees that it will not share the API Access Information with any third party,
other than as permitted by Opt It in writing; or (ii) use or permit use of the
API or content made available by Opt It in any way that is excessive or abusive
of Opt It bandwidth or other Opt It resources, or in any other way not
expressly permitted or granted under this Agreement.
c. Restrictions. Licensee agrees that it
will not modify or permit or assist any other party to modify any part of the
Opt It Technology in any manner whatsoever or otherwise make copies of all or
part of the Opt It Technology onto any media, except with the express prior
written consent of Opt It, which Opt It may withhold in its sole discretion.
Licensee further agrees that it will not, and will not permit or assist any
other party to, disassemble, decompile or reverse engineer all or any part of
the Opt It Technology.
d. License
to Licensee Application and Licensee Content. Licensee grants to Opt It a
royalty-free, fully paid up, transferable, worldwide right and license during
the Term to incorporate, reproduce, digitize, adapt, modify, format, transmit,
distribute, publicly perform, publicly display and otherwise use the Licensee
Content and all Licensee Applications to perform the Opt It Services.
e. As
between Opt It and Licensee, Licensee is the owner of personally identifying
User Data that it provides to Opt It or that Subscribers provide to Opt It when
signing up via a text-in method to receive Mobile Messages from Licensee ("Licensee User Data"). Licensee grants to Opt It a
royalty-free, fully paid up, transferable, worldwide right and license to
store, use and transfer the Licensee User Data to provide the Opt It Services. All other User Data is
owned by Opt It, including, without limitation, data derived from Licensee User
Data but rendered non-personally identifiable.
3. Ownership.
Licensee
acknowledges and agrees that, as between Licensee and Opt It, Opt It owns and
will retain all rights, title and interest in and to:
(i)
the Opt It Technology including, without limitation, Widgets,
the API, any and all versions and updates made to the Opt It Technology and all
source code, object code and similar materials embodied therein; and
(ii)
all information and materials provided by Opt It to
Licensee in connection with the Opt It Services, including, without limitation,
all trade secrets, financial data, tools, software, concepts, methodologies,
inventions, patterns, algorithms, techniques, know-how, formats, engines,
modules, applications, controls, data, and other content, regardless of whether
such materials were created or developed prior to or during the Term (collectively,
3(i) and 3(ii) the "Opt It Materials").
To the extent
Licensee obtains any rights in the Opt It Materials (excluding User Data) due
to the performance of its obligations under this Agreement, Licensee hereby
irrevocably assigns to Opt It all rights, title and interest in the Opt It
Materials.
4. Licensee
Acknowledgments and Warranties.
Licensee
acknowledges and warrants that:
a. During
the Term, Licensee will make all necessary disclosures to consumers and, if
required by law, will maintain and post an accurate and legally compliant
privacy policy ("Licensee Privacy
Policy"), which will include, if applicable, disclosures regarding the
presence of third parties on the Licensee's web site and the use of
technologies such as the Widget and API. .
c. Licensee
will access and use the Opt It Services and the Opt It Materials only as
authorized by Opt It, and not by fraudulent means or activities such as by
robot, spider or scraper.
d. Licensee
will not bypass any robot exclusion headers (including using any device,
software, or routine to accomplish that goal) contained in the Opt It Materials
or the Opt It Services, or interfere or attempt to interfere with the proper
working of the Opt It Materials or the Opt It Services. Licensee will not take any action that
imposes an unreasonable or disproportionately large load on the Opt It
Materials or the Opt It Services, including, without limitation, on Opt It's
servers, as determined by Opt It in its sole discretion.
e. Licensee
has the right to enter into this Agreement and to perform its obligations under
this Agreement;
f. Licensee
has the right to grant to Opt It the licenses granted
by it during the Term;
g. By
entering into this Agreement and performing its obligations under this Agreement,
Licensee does not and will not violate, conflict with, breach, default or
otherwise adversely affect any agreement, right or obligation existing between
Licensee and any other person, firm or entity;
h. Licensee
will comply with, and will ensure that its use of the Opt It Services,
including, without limitation, all of its Mobile Messages and campaigns and
advertisements related thereto comply with, all applicable laws, rules,
regulations, codes, statutes, ordinances or orders of any governmental and
quasi-governmental authorities including, without limitation, the
Telecommunications Consumer Protection Act, Telemarketing and Consumer Fraud
and Abuse Prevention Act, any regulation of the United States Securities and
Exchange Commission or any stock exchange, the Controlling the Assault of
Non-Solicited Pornography and Marketing Act of 2003 and the Children's Online
Privacy Protection Act (collectively, "Laws");
i. Licensee
will comply with, and will ensure that its use of the Opt It Services, including,
without limitation, all of its Mobile Messages and campaigns and advertisements
related thereto comply with, all applicable industry guidelines, including,
without limitation, the then-current version of the Mobile Marketing
Association's Consumer Best Practices Guidelines and any applicable
self-regulatory guidelines applicable to the content or distribution of a
Mobile Message (collectively, "Industry Guidelines");
j. Licensee
will not disobey any requirements, procedures, policies or regulations of Opt
It or any Distributor;
k. the Licensee Content will not violate, misappropriate or
infringe upon any copyright, patent, trade secret, trade identity, or any
personal, moral, literary, privacy, publicity or other intellectual property or
proprietary right;
l.
the Licensee Content will not cause Opt It to violate
any Laws or Industry Guidelines;
m. Licensee
will not authorize the transmission of Mobile Messages or take any action to transmit
any Mobile Messages to a Subscriber unless the recipient Subscriber has
expressly consented (as required by, including, without limitation, the Laws
and Industry Guidelines) to receive the Mobile Message and the Licensee Content
contained therein and has not subsequently withdrawn his/her consent;
n. Licensee
will only provide Opt It with Subscriber Data for those Subscribers that have
affirmatively and expressly consented (as required by including, without
limitation, the Laws and Industry Guidelines) to receive Mobile Messages
containing advertising materials from Licensee;
o. If a
Subscriber notifies Licensee in any manner whatsoever that Subscriber withdraws
his/her consent to receive Mobile Messages from Licensee, Licensee will notify
Opt It within seven (7) business days of such withdrawal. Licensee acknowledges that Licensee must
regularly review any messages received in its account through the Opt-It
Services to determine if a Subscriber has attempted to withdraw consent and
unsubscribe.
p. Licensee
will not transmit any materials via the Opt It Services or the Opt
It Materials, Licensee Applications, Widgets or Licensee Web Sites that:
(i) are or may be inaccurate, false, incomplete, patently
offensive, illegal, tortious, pornographic, obscene, sexually explicit or
potentially dangerous or harmful, including, without limitation, content that
is harmful to minors;
(ii)
constitute false advertising or unfair trade or deceptive
practices;
(iii) threaten, harass, intimidate or abuse others;
(iv) promote violence or describe how to perform a violent act;
(v) include any negative comments that are connected to race,
national origin, gender, sexual preference or physical handicap;
(vi) promote any illegal activity;
(vii) defame,
libel, ridicule or disparage anyone, including, without limitation, any materials
that affect the reputation of, embarrass or libel Opt It or Opt It's clients,
sponsors, advertisers, directors, principals, representatives, agents,
employees, successors, assigns, licensors or licensees;
(viii) solicit
participation in or raise money for a pyramid or other multi-tiered marketing
scheme;
(ix) constitute a virus, worm, Trojan Horse, easter egg, time
bomb, spyware or any other content that damages, hijacks, disables, impairs or
otherwise interferes with the Opt It Services; the Opt It Materials; or any
hardware, software, network, data or telecommunications equipment (whether
belonging to Opt It or not);
(x) modify, impair, disrupt, alter or interfere with the use,
features, functions, operation or maintenance of the Opt It Services or the Opt
It Materials;
(xi) act as a passive or active information collection or
transmission mechanism, including, without limitation, clear graphics
interchange formats, 1x1 pixels, web bugs, cookies or other similar devices
(sometimes referred to as "spyware," "passive collection mechanisms" or "pcms");
(xii) use
or launch any automated system or unauthorized script, including without
limitation, any spider, robot (or "bot"), scraper or offline reader that
accesses the Opt It Services or the Opt It Materials;
(xiii) cover
or obscure any banner or other advertisement;
(xiv) interfere
with or circumvent any security feature of the Opt It Services or the Opt It
Materials or any feature that restricts or enforces limitations on use of or
access to the Opt It Services or the Opt It Materials; or
(xv)
could
permit Licensee to access Opt It's or a User's software, hardware, network,
data or telecommunication equipment.
p. Licensee
understands that Opt It may modify, improve, update or upgrade the Opt It
Services and the Opt It Technology, including without limitation, the
"look and feel" of the Opt It Services, at its sole discretion and at
any time and that Licensee will adopt any such modifications, improvements,
updates or upgrades as required by Opt It.
q. Licensee
understands that Subscriber Data is available for download by Licensee via the
Opt It Services during the Term.
You agree to periodically download and backup Subscriber Data during the
Term. Opt It will not make
Subscriber Data available to You for more than sixty
(60) days after any termination of this Agreement.
5. Audit
Rights. Opt It reserves the right to periodically audit and
review the contents of the, Licensee Applications, Widgets and Licensee Web
Sites to ensure Licensee's compliance with the terms and conditions of this
Agreement and any Statements of Work and Additional Agreements.
6. Costs. Except for any costs expressly assumed by Opt It in writing, Licensee
will be solely responsible for all costs and expenses relating to the exercise
of its rights and performance of its obligations under this Agreement. Licensee, for example, will at its sole
cost and expense: (a) operate, host and maintain the Licensee Application(s);
and (b) be solely responsible for the acquisition, installation, configuration,
implementation, operation, and maintenance of all information processing
equipment, software, communications, and other resources and facilities
necessary to utilize the Opt It Services and the Opt It Materials.
7. Licensee
Security Obligations and Procedures.
(a) Licensee
warrants and represents that the systems, software or hardware Licensee uses to
interact with the Opt It Technology (including, without limitation, the API and
any Widget) will not contain any computer code that will disrupt, disable,
harm, or otherwise impede the operation of the Opt It Technology (including,
without limitation, the API and any Widget) or any software, hardware,
firmware, computer system or network (sometimes referred to as "viruses,"
"worms" or "malware"). Licensee
also represents and warrants that it will keep all User Data secure.
(b) Licensee
will promptly notify Opt It if Licensee becomes aware of any actual or
attempted unauthorized use, violation, compromise or breach of security (electronic
or physical) that impacts any servers, databases, logs or other materials
generated from or used in conjunction with the Opt It Services or Opt It
Materials ("Licensee Infrastructure"), whether the incident originates within
Licensee or externally ("Security Incident") and will immediately use
continuous efforts to address and correct any Security Incident. Licensee
agrees to assist Opt It in the investigation of any Security Incident and to
take action that is reasonably necessary to prevent the continuation or
recurrence of any Security Incident. Opt It will have the right, but not the
obligation, to perform an independent audit to ensure that all necessary,
remedial actions have been performed to correct any Security Incident. At any time during the Term, Opt It will
have the right, but not the obligation, to conduct, or cause a qualified
independent third party to conduct, vulnerability assessment testing of the Licensee
Infrastructure. Licensee will
maintain appropriate processes to identify and correct any weakness at the
network services, operating system, application or physical level that could
allow a Security Incident to occur.
Upon five (5) days prior written notice, or immediately during an at
risk situation, Licensee will permit Opt It representatives to access, during
normal business hours, the computing environment where the Licensee Infrastructure
is located, for purposes of performing inspections or walk-throughs in order to
confirm compliance with this Agreement.
8. Suspension. In
addition to the Opt It's right to terminate as detailed in Section 12 below, Opt
It may suspend Licensee's rights to use or make available the Opt It Services
or the Opt It Materials at any time without liability and without providing
prior notice to Licensee.
9. Fees,
Advertising and Taxes. Opt It may charge a fee ("Fee") in
exchange for providing the Opt It Services and the Opt It Materials and it
reserves the right to require payment of all Fees in full prior to providing
the Opt It Services. Licensee agrees to pay the applicable Fee and authorizes
Opt It and its authorized agents to process all charges incurred by
Licensee. Licensee agrees that it
will be solely responsible for the payment of all federal and state taxes,
excluding taxes attributable to Opt It's gross income, in connection with the
Opt It Services and agrees that it will reimburse Opt It for all such taxes to the extent they are not included in
the Fee.
10. Confidentiality. Licensee acknowledges that: (a) the Opt It Materials;
and (b) any other information that Opt It may identify as confidential from
time to time, is Opt It's confidential information (the "Opt It Confidential
Information"). Licensee agrees to: (i)
keep confidential all Opt It Confidential Information; (ii) not disclose or
convey Opt It Confidential Information to third parties; and (iii) treat Opt It
Confidential Information with the same degree of confidentiality and care with
which Licensee treats its own confidential information, but in no event less
than a reasonable standard of care.
11. Term,
Termination and Effect of Termination.
a. Term. This Agreement will continue in full
force and effect until terminated pursuant to Section 12(b) below (the "Term").
b.
Termination. Opt It may terminate this Agreement in its sole
discretion upon providing ten (10) days
written notice to Licensee or immediately if a change in law or interpretation
of law requires so (in Opt It's sole discretion). Opt It may also terminate this Agreement
at any time, without notice to Licensee, based on Licensee's actual or alleged
breach of this Agreement. Licensee
may terminate this Agreement upon providing thirty (30) days
written notice to Opt It.
c. Effect
of Termination. Upon expiration of the Term, Licensee's right to use the
Opt It Services and the Opt It Materials will immediately terminate. Licensee
will delete any and all Opt It Materials in its possession (excluding the User
Data) and will no longer have any right to use or possess the Opt It Materials.
To evidence such destruction and removal, Licensee will provide Opt It, upon
Opt It's request, with an affidavit signed by an authorized officer of Licensee
confirming such facts. In the event
of termination, Licensee will be obligated to pay Opt It any outstanding Fees
due under this Agreement or any Statements of Work or Additional Agreements as
of the effective date of termination.
12. Disclaimer of Warranties. LICENSEE UNDERSTANDS THAT THE OPT IT
SERVICES, INCLUDING WITHOUT LIMITATION THE ABILITY FOR LICENSEE TO SEND OR
CAUSE THE TRANSMISSION OF THE MOBILE MESSAGES, ARE NOT AVAILABLE ON ALL
WIRELESS CARRIERS AND WIRELESS DEVICES. THE OPT IT SERVICES, AND THE OPT IT
MATERIALS ARE PROVIDED "AS IS," "AS AVAILABLE," AND
"WITH ALL FAULTS." LICENSEE
FURTHER UNDERSTANDS AND AGREES THAT THE OPT IT SERVICES AND THE OPT IT
MATERIALS MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR
UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY OPT IT OR BY THIRD-PARTY
PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND OPT IT'S REASONABLE CONTROL
WITHOUT NOTICE TO LICENSEE AND WITHOUT LIABILITY FOR OPT IT. TO THE FULLEST
EXTENT PERMISSIBLE BY LAW, OPT IT AND OPT IT'S DIRECTORS, PRINCIPALS,
REPRESENTATIVES, AGENTS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND LICENSEES
(COLLECTIVELY, THE "OPT IT PARTIES")
MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER
ABOUT: (A) THE OPT IT SERVICES;; (B) THE OPT IT
MATERIALS; (C) THE ABILITY OF THE OPT IT SERVICES, THE MOBILE MESSAGES OR THE OPT
IT MATERIALS TO WORK WITH ANY PARTICULAR HARDWARE, SOFTWARE, NETWORK, DATA,
TELECOMMUNICATIONS EQUIPMENT OR WIRELESS CARRIER; (D) THE ACCURACY OF ANY USER
DATA; (E) WHETHER OR NOT THE OPT IT SERVICES OR THE OPT IT MATERIALS WILL BE
COMPATIBLE WITH AND/OR OPERATE WITH ANY OTHER HARDWARE, SOFTWARE, NETWORK,
DATA, TELECOMMUNICATIONS EQUIPMENT OR WIRELESS CARRIER NOW OR LATER
CONTEMPLATED, INCLUDING, WITHOUT LIMITATION, WATER MARKING, ENCRYPTION, AND/OR
ANY OTHER SOFTWARE THAT MAY BE EMBEDDED IN OR USED IN CONJUNCTION WITH THE OPT
IT SERVICES OR THE OPT IT MATERIALS; OR (F) ANY BREACH OF SECURITY ASSOCIATED
WITH THE TRANSMISSION OF INFORMATION THROUGH THE OPT IT SERVICES, THE MOBILE
MESSAGES, THE OPT IT MATERIALS OR TELECOMMUNICATIONS EQUIPMENT. OPT IT DOES NOT
WARRANT THAT THE OPT IT SERVICES, OR THE OPT IT MATERIALS WILL BE COMPLETE,
ACCURATE, UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT
THE OPT IT SERVICES, THE MOBILE MESSAGES OR THE OPT IT MATERIALS OR THE SERVERS
THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
OPT IT DOES NOT
REPRESENT OR WARRANT THAT LICENSEE'S ACTIVITIES OR USE OF THE OPT IT SERVICES,
THE SENDING OF THE MOBILE MESSAGES OR THE OPT IT MATERIALS IS LAWFUL IN ANY
PARTICULAR JURISDICTION AND, IN ANY EVENT, SPECIFICALLY DISCLAIMS SUCH
WARRANTIES. LICENSEE UNDERSTANDS THAT BY ACCESSING OR USING THE OPT IT SERVICES
OR THE OPT IT MATERIALS IT ACTS AT ITS OWN RISK AND IT REPRESENTS AND WARRANTS
THAT ITS ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE IT ACCESSES OR USES
THE OPT IT SERVICES OR OPT IT MATERIALS.
FURTHER, THE OPT IT PARTIES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES
INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NONINFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN
LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
SOME JURISDICTIONS
LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE
ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS
APPLICABLE TO THIS AGREEMENT.
13. Indemnification
& Limitation of Liability.
Licensee agrees to defend, indemnify and hold Opt
It and its parents, subsidiaries, affiliates, and the officers,
directors, agents, representatives and employees of each from and against any and all
claims, damages, costs, investigations, liabilities, judgments, settlements and
expenses, including attorneys' fees, that directly or indirectly arise from or
are otherwise directly or indirectly related to: (a) Licensee Content; (b) use
of the Opt It Services; or (c) Licensee's breach (actual or alleged) or
anticipatory breach of this Agreement; (c) any misrepresentation made by Licensee.
You will cooperate as fully required by Licensee in the defense of any claim. Licensee reserves the right to assume the
exclusive defense and control of any matter otherwise subject to
indemnification by Licensee, and Licensee will not in any event settle any
claim without the prior written consent of a duly authorized employee of Opt It.
THE OPT IT PARTIES
WILL NOT BE LIABLE FOR LICENSEE'S OR A SUBSCRIBER'S USE OF OR ACCESS TO THE OPT
IT SERVICES, THE MOBILE MESSAGES OR THE OPT IT MATERIALS; THE FAILURE OF A
MOBILE MESSAGE TO REACH ANY OR ALL INTENDED SUBSCRIBERS; OR ANY DAMAGE TO ANY
HARDWARE, SOFTWARE, NETWORK, DATA OR TELECOMMUNICATIONS EQUIPMENT, INCLUDING,
WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS,
TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR
TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE, LOSS OF SUBSCRIBER DATA OR ANY
OTHER TECHNICAL OR OTHER MALFUNCTION.
UNDER NO
CIRCUMSTANCES WILL THE OPT IT PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARE
DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE
PERFORMANCE OF, THE OPT IT SERVICES, THE MOBILE MESSAGES OR THE OPT IT
MATERIALS OR ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY OPT IT OR
LAW ENFORCEMENT AUTHORITIES REGARDING LICENSEE'S USE OF THE OPT IT SERVICES, THE
MOBILE MESSAGES OR THE OPT IT MATERIALS, EVEN IF FORESEEABLE OR IF OPT IT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER IN AN ACTION BASED
IN TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. SOME STATES DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION
OR EXCLUSION MAY NOT APPLY TO LICENSEE.
IN NO EVENT WILL OPT IT'S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES,
LOSSES, OR CAUSES OF ACTION EXCEED THE FEE OPT IT HAS CHARGED LICENSEE (IF ANY)
DURING THE MONTH IN WHICH THE ALLEGED DAMAGE, LOSS, OR CAUSE OF ACTION WAS
INCURRED OR U.S. $10.00, WHICHEVER AMOUNT IS GREATER.
LICENSEE
RECOGNIZES AND CONFIRMS THAT IN THE EVENT LICENSEE INCURS ANY DAMAGES, LOSSES
OR INJURIES THAT ARISE OUT OF OPT IT'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY,
CAUSED TO LICENSEE ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE LICENSEE TO AN
INJUNCTION PREVENTING ANY EXPLOITATION OF ANY PROPERTY, PRODUCT OR SERVICE
OWNED OR CONTROLLED BY THE OPT IT PARTIES, AND LICENSEE WILL HAVE NO RIGHTS TO
ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING,
EXHIBITION OR EXPLOITATION OF ANY SUCH PROPERTY, PRODUCT OR SERVICE OR ANY AND
ALL ACTIVITIES OR ACTIONS RELATED THERETO.
14. Miscellaneous.
a. Independent
Contractor. It is understood and agreed that Opt It is acting as an
independent contractor in the performance of the Opt It Services, and nothing
herein contained shall be deemed to create an agency relationship between Opt
It and Licensee.
b. Advertising
Agency. To the extent that Licensee
is an advertising agency acting as an agent on behalf of its Licensee (an
"Advertising Agency"), Advertising Agency agrees that it will notify its Licensee
of all requirements and obligations under this Agreement; and that Advertising
Agency and its Licensee will be jointly and severally liable for non-compliance
with all requirements and obligations under this Agreement, including without
limitation, all payment obligations.
c. Credit. Licensee agrees that references to one
or more of Opt It's trade identities, including, without limitation, the
language "Powered by Opt It," may appear in any products or services
that are part of the Opt It Services in a size and location determined by Opt
It in its sole discretion.
d. Marketing.
Licensee agrees that Opt It will have a limited, non-transferable,
non-exclusive, royalty-free, fully paid, worldwide license to use Licensee's
name and logo and any quotes or statements made by Licensee regarding the Opt
It Services in connection with Opt It's corporate and external communications,
including, without limitation, in press releases; product brochures and other
marketing materials; and financial reports. Licensee further agrees that the
aforementioned uses may include a reference to Licensee as a Licensee of Opt It
and a user of the Opt It Services.
e. Entire
Agreement. This Agreement contains the sole and entire agreement between
the parties with respect to the subject matter of this Agreement and supersedes
any and all other prior or contemporaneous written or oral agreements
pertaining thereto. No oral statement of any Opt It representative or employee
will, in any manner or degree, modify or otherwise affect this Agreement. No Opt It purchase orders, invoices or
other business forms will modify, supersede or otherwise alter this Agreement
unless expressly stated in the applicable purchase order, invoice or other
business document.
f. Governing
Law, Venue and Jurisdiction. This Agreement will be construed and enforced
in accordance with the laws of the State of Illinois, without regard to its
conflicts of law principles and will specifically not be governed by the United
Nations Conventions on Contracts for the International Sale of Goods, if
otherwise applicable. Any cause of action filed by Licensee with respect to this
Agreement, the Opt It Services, the Opt It Materials or the Mobile Messages must
be filed in the Federal courts located in the County of Cook, City of Chicago,
State of Illinois within ninety (90) days after the occurrence of the facts
giving rise to the cause of action, otherwise the cause shall be forever
barred. Licensee hereby consents
and submits to the exclusive personal jurisdiction and venue of the courts
located in the County of Cook, City of Chicago, State of Illinois for any cause
of action relating to or arising under this Agreement, the Opt It Services, the
Opt It Materials or the Mobile Messages.
g. Assignment.
Licensee may not transfer or assign its rights or obligations under this
Agreement to any third party (including its parent, subsidiary or affiliate),
including, without limitation, any transfer or assignment by way of merger,
consolidation, sale of all or substantially all of its assets, without the
prior written consent of Opt It.
Opt It may freely assign its rights and obligations under this Agreement
to any third party (including its subsidiary or affiliate).
h. Successors
& Assigns. Subject to Section 15(h) above, this Agreement is binding
upon and will inure to the benefit of the parties hereto and their respective
assignors, predecessors in interest, successors, assigns, heirs and personal
representatives.
i. Severability. If any provision of this Agreement is
held to be illegal or unenforceable, that provision will be limited or
eliminated to the minimum extent necessary so that this Agreement otherwise
remains in full force and effect and enforceable.
j. Force
Majeure. Opt It will not be
liable for delay or default in the performance of its obligations under this
Agreement or any Statements of Work or Additional Agreements if such delay or
default is caused by conditions beyond its reasonable control, including but
not limited to, fire, flood, accident, earthquakes, telecommunications line
failures, electrical outages, network failures, acts of God, or third party
labor disputes.
k. Waiver. No waiver by either party of any
performance of the other party required under this Agreement or any default of
either under the terms of this Agreement will constitute or imply, whether by
passage of time or otherwise, any further waiver of any other performance or
default.
l. Subpoenas.
In the event that Opt It or any of
its employees, agents or subcontractors is served with or becomes subject to
any subpoena in a legal proceeding to which Licensee is a party and that
subpoena seeks disclosure of materials or information related to the goods,
services, information or deliverables that Opt It provides to Licensee hereunder,
then Licensee shall reimburse Opt It for all direct and documented costs and
expenses charged by a third party for Opt It to comply with such a subpoena,
including without limitation, reasonable attorney's fees and costs related
thereto.
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