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OPT IT, INC. TERMS AND CONDITIONS

Effective Date: 5/10/08

Opt It, Inc. (“Opt It,” “we” or “us”) owns, powers, hosts, manages, and administers web pages at various OptIt.com domains that are sponsored by Opt It and third parties (the “Co-Branded Pages”) that offer various Opt It-selected interactive features and functionality to Internet and mobile phone users (“Users”). Opt It also owns 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.

This Opt It License and Services Agreement ("Agreement") sets forth the terms and conditions by which Opt It permits you (“You” or “Licensee”) to be a co-sponsor of designated Co-Branded Page(s) (the “Licensee Pages”) and access and utilize certain technologies provided by Opt It, including, without limitation, the API (collectively, the “Opt It Services”).

You further understand that Opt It offers two levels of co-sponsorship, “Standard Sponsors” and “Premium Sponsors” and, depending on your selection, you will either be considered a Standard Sponsor or Premium Sponsor. Typically, Co-Branded Pages co-sponsored by Standard Sponsors have the basic look and feel of OptIt.com while Co-Branded Pages co-sponsored by Premium Sponsors offer additional design features specific to the Licensee.

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 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.

Definitions. The following definitions apply to this Agreement:

1.1 “Carrier” means a wireless telecommunications carrier that makes Mobile Messages (defined below in Section 1.5) available to its Subscribers.

1.2 “Distributor” means any third party that is billing Subscribers for access to Mobile Messages or directly providing Mobile Messages to Subscribers (defined below in Section 1.7), including, without limitation, 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 Co-Branded Pages 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 Page, Licensee Application, Widget (defined below in Section 1.11) or Mobile Message.

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 pertainingto Users. User Data specifically excludes the Licensee User Data (as defined in Section 1.10 below).

1.10 "Licensee User Data" means all demographic, transactional, personally identifying, and other information, data, files or records provided by Licensee to Opt It that pertains to individuals that are not registered with Opt It, a Co-Branded Page, a Licensee Page, a Licensee Application, a Widget or an Opt It partner.

1.11 "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.

  1. 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.
  2. 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 as necessary to: (i) run Licensee Applications; and (ii) implement Widgets into web sites owned and controlled by Licensee (“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 provide to Licensee confidential information to enable Licensee Application to access Opt It’s application server for the Permitted API Use (the "API Access Information"). At other times, Licensee will have the ability to access the API without API Access Information. Regardless, in implementing the API, Licensee will comply fully with any documentation provided by Opt It. Opt It may immediately revoke or terminate access to the API: (i) if Licensee shares the API Access Information with any third party, other than as permitted by Opt It in writing; (ii) if Licensee uses or permits 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; (iii) upon termination of this Agreement; or (iv) if the API or the API Access Information is compromised by a third party or if Opt It otherwise determines or decides to do so, in its sole discretion, to protect its business, its licensees, its users or the public.
  3. 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.
  4. License to Licensee Application, Licensee Content and Licensee User Data. 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 the Licensee Application to perform the Opt It Services. Licensee owns the 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. To the extent Licensee provides Licensee User Data to Opt It and the user(s) to which that Licensee User Data pertains subsequently register with Opt It, a Co-Branded Page, a Licensee Page, a Widget, a Licensee Application or an Opt It partner, the Licensee User Data becomes User Data as defined in Section 1.9 of this Agreement.

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:

  1. 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


  2. 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, the “Opt It Materials”).

Opt It and Licensee agree that Opt It and Licensee will each be an owner of the User Data. LICENSEE ALSO UNDERSTANDS THAT A USER MAY VOLUNTARILY UTILIZE THE OPT IT SERVICES TO VISIT CO-BRANDED PAGES SPONSORED BY ANY NUMBER OF THIRD PARTY CO-SPONSORS. BY USING THIS FEATURE, THE USER WILL MAKE HIS/HER USER DATA AVAILABLE TO THOSE THIRD PARTY CO-SPONSORS, WHO WILL ALSO BE OWNERS OF THAT USER DATA.

Collectively the Opt It Technology, the Opt It Materials and the User Data will be referred to as the “Opt It Property.” To the extent Licensee obtains any rights in the Opt It Property (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 Property.

4. Licensee Acknowledgments and Warranties. Licensee acknowledges and warrants that:

  1. It will cooperate with Opt It to the extent Opt It requires placement of valid links to the Opt It Terms and Conditions, the Opt It Privacy Policy and other Opt It documents on the Licensee Pages, Licensee Applications or Widgets, including, without limitation, the placement of these links in clickwrap agreement language.
  2. During the Term, to the extent Licensee is a Premium Sponsor, Licensee will maintain and enforce an accurate and legally compliant privacy policy "Licensee Privacy Policy"). The Licensee Privacy Policy will also contain the following non-modifiable language with link intact: "We have contracted with Opt It, Inc. to power certain functions of this web site. For more information about how Opt It collects and utilizes user data, please see Opt It's Privacy Policy." The term “Privacy Policy” in that statement must operate as a direct and functional link to Opt It’s Privacy Policy.
  3. Licensee will access and use the Opt It Services and the Opt It Property only as authorized by Opt It, and not by fraudulent means or activities such as by robot, spider or scraper. Licensee will not produce (directly or indirectly) fraudulent traffic to Licensee Pages, Licensee Applications or Widgets, including, without limitation, with forced, automated or artificially created clicks or impressions or automatic redirecting of users. Any amounts otherwise recorded as payable to Licensee and relating to such fraudulent activity will not be paid.
  4. Licensee will not bypass any robot exclusion headers (including using any device, software, or routine to accomplish that goal) contained in the Opt It Property or the Opt It Services, or interfere or attempt to interfere with the proper working of the Opt It Property or the Opt It Services. Licensee will not take any action that imposes an unreasonable or disproportionately large load on the Opt It Property or the Opt It Services, including, without limitation, on Opt It’s servers, as determined by Opt It in its sole discretion.
  5. Licensee has the right to enter into this Agreement and to perform its obligations under this Agreement;
  6. Licensee has the right to grant to Opt It the licenses granted by it during the Term;
  7. By entering into this Agreement and performing its obligations under this Agreement, Licensee does 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;
  8. Licensee will not violate any applicable laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative 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 or the Children’s Online Privacy Protection Act (collectively, "Laws");
  9. Licensee’s use of the User Data will not cause Opt It to violate any Laws;
  10. Licensee will not violate any 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”);
  11. Licensee will not disobey any requirements, procedures, policies or regulations of Opt It or any Distributor;
  12. 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;
  13. The Licensee Content will not cause Opt It to violate any Laws or Industry Guidelines;
  14. Licensee will not authorize the transmission of Mobile Messages to a Subscriber unless the recipient Subscriber has expressly agreed to receive the Mobile Message and the Licensee Content contained therein and has not subsequently withdrawn his/her consent;
  15. Licensee will only provide Opt It with Subscriber Data for those Subscribers that have affirmatively and expressly agreed to receive Mobile Messages containing advertising materials from Licensee;

  16. Licensee will not transmit any materials via the Opt It Services or the Opt It Property or make any materials available via Licensee Pages, Licensee Applications, Widgets or Licensee Web Sites that:

    1. is or may be inaccurate, false, incomplete, patently offensive, illegal, tortious, pornographic, obscene, sexually explicit, potentially dangerous or harmful, including, without limitation, content that is harmful to minors;

    2. constitutes false advertising or unfair trade or deceptive practices;

    3. threatens, harasses, intimidates or abuses others;

    4. promotes violence or describes how to perform a violent act;

    5. includes any negative comments that are connected to race, national origin, gender, sexual preference or physical handicap;

    6. promotes any illegal activity;

    7. defames, libels, ridicules, or disparages 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;

    8. solicits participation in or raise money for a pyramid or other multi-tiered marketing scheme;

    9. constitutes 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 Property; or any hardware, software, network, data or telecommunications equipment (whether belonging to Opt It or not);

    10. modifies, impairs, disrupts, alters or interferes with the use, features, functions, operation or maintenance of the Opt It Services or the Opt It Property;

    11. acts 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”);

    12. uses or launches 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 Property;

    13. covers or obscures any banner or other advertisement;

    14. interferes with or circumvents any security feature of the Opt It Services or the Opt It Property or any feature that restricts or enforces limitations on use of or access to the Opt It Services or the Opt It Property; or

    15. could permit Licensee to access Opt It’s or a User’s software, hardware, network, data or telecommunication equipment.

  17. 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.

5. Audit Rights. Opt It reserves the right to periodically audit and review the contents of the Licensee Pages, Licensee Applications, Widgets and Licensee Web Sites to ensure compliance with the terms and conditions of this Agreement and any Statements of Work and Additional Agreements.

6. Intellectual Property Infringement. If Licensee has knowledge of any infringing material on Licensee Pages, Licensee Applications, Widgets or Licensee Web Sites, Licensee will immediately act to remove or disable access to such material and will immediately notify Opt It.

7. 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 and maintain theLicensee 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 Property.

8. Licensee Security Obligations and Procedures.

(a) Licensee warrants and represents that it will keep the User Data and any servers, databases, logs or other sensitive materials generated from or used in conjunction with the Opt It Services or the Opt It Property (collectively, the “Licensee Infrastructure”) both physically and logically secure. “Physically secure” means that unauthorized parties are physically prevented from gaining access to the computing environment where the Licensee Infrastructure is located and “logically secure” means that unauthorized parties are not able to alter or corrupt data files related to the Licensee Infrastructure. Licensee will apply industry standard locks and install appropriate electronic monitoring devices on the premises of the location of the Licensee Infrastructure. Licensee will provide and maintain appropriate and reasonable online security for the Licensee Infrastructure to prevent unauthorized access to the Licensee Infrastructure, including without limitation by: (i) implementing reasonable and appropriate data security measures to prevent unauthorized access to the Licensee Infrastructure; (ii) utilizing secure SSL and other encryption of all data transmissions executed by Licensee and as otherwise required by law; (iii) automatically logging off users to Licensee Applications if the Licensee Applications are idle or no action is taken after a specified period of time; (iv) isolating User Data into separate databases; and (v) as applicable, complying with the Payment Card Industry Data Security Standards (“PCI Standards”) for credit card transactions and storage.

(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 the 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.

9. Take-Down Right. Opt It may terminate Licensee’s rights to use or make available the Opt It Services or the Opt It Property at any time without liability and without providing prior notice to Licensee.

10. Fees, Advertising and Taxes. Opt It may charge a fee (“Fee”) in exchange for providing the Opt It Services and the Opt It Property 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.

Except as specifically authorized by Opt It in writing, Licensee will not charge users for access to the Licensee Pages, Licensee Applications, Widgets and all Opt It Services and Opt It Property. Further, Opt It or third parties engaged by Opt It may sell, manage, administer, and serve advertising in connection with the Opt It Services, including, without limitation, on Co-Branded Pages, Licensee Pages, Licensee Applications and Widgets (“Hosted Advertising”). Unless otherwise agreed to by both parties in writing, as between Opt It and Licensee, Opt It will collect and retain all revenue derived from Hosted Advertising.

11. Confidentiality. Licensee acknowledges that: (a) the Opt It Property; 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”). In addition to complying with all applicable requirements set forth above in Section 8, 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.

Licensee acknowledges that the Opt It Confidential Information is of extremely high value to the Licensee and that the disclosure or misuse of Opt It Confidential Information would cause irreparable harm to Licensee. In the event of any breach of Licensee’s obligations under this Section 11, Opt It will, in addition to such other remedies as may be available to it at law or in equity, be entitled to enforce its rights by obtaining injunctive relief against Licensee and its agents and employees without requirement of posting bond or proving actual damages.

12. Term, Termination and Effect of Termination.
  1. Term. This Agreement will continue in full force and effect until terminated pursuant to Section 12(b) below (the "Term").
  2. Termination. Opt It may terminate this Agreement in its sole discretion upon providing ten (10) days written notice to Licensee. 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.
  3. Effect of Termination. Upon expiration of the Term, Licensee’s right to use the Opt It Services and the Opt It Property (excluding the Authorized User Data) will immediately terminate. Licensee will delete any and all Opt It Property in its possession (excluding the Authorized User Data) and will no longer have any right to use or possess the Opt It Property (excluding the Authorized User Data). 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.

13. Disclaimer of Warranties. LICENSEE UNDERSTANDS THAT THE MOBILE MESSAGES ARE NOT AVAILABLE ON ALL WIRELESS CARRIERS AND WIRELESS DEVICES. THE OPT IT SERVICES, THE OPT IT PROPERTY AND THE MOBILE MESSAGES ARE PROVIDED "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS." LICENSEE FURTHER UNDERSTANDS AND AGREES THAT THE OPT IT SERVICES AND THE OPT IT PROPERTY 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 MOBILE MESSAGES; (C) THE OPT IT PROPERTY; (D) THE ABILITY OF THE OPT IT SERVICES, THE MOBILE MESSAGES OR THE OPT IT PROPERTY TO WORK WITH ANY PARTICULAR HARDWARE, SOFTWARE, NETWORK, DATA, TELECOMMUNICATIONS EQUIPMENT OR CARRIER; (E) THE ACCURACY OF ANY AUTHORIZED USER DATA; (F) WHETHER OR NOT THE OPT IT SERVICES OR THE OPT IT PROPERTY WILL BE COMPATIBLE WITH AND/OR OPERATE WITH ANY OTHER HARDWARE, SOFTWARE, NETWORK, DATA, TELECOMMUNICATIONS EQUIPMENT OR 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 PROPERTY; OR (G) ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE OPT IT SERVICES, THE MOBILE MESSAGES, THE OPT IT PROPERTY OR TELECOMMUNICATIONS EQUIPMENT. OPT IT DOES NOT WARRANT THAT THE OPT IT SERVICES, THE MOBILE MESSAGES OR THE OPT IT PROPERTY 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 PROPERTY 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 MOBILE MESSAGES OR THE OPT IT PROPERTY 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 PROPERTY 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 PROPERTY. 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.

14. Limitation of Liability. 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 PROPERTY; 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 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 PROPERTY 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 PROPERTY, 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.

15. Miscellaneous.

  1. Consumer Disclosures. Opt It may provide Licensee consumer disclosuresfor: (i) Licensee Pages; (ii) Licensee Applications; (iii) Widgets; (iv) the Mobile Messages and/or (iv) materials that advertise or promote Licensee Pages, the Licensee Applications, Widgets or Mobile Messages. Licensee agrees to allow or, as applicable, implement all such consumer disclosures, as required by Opt It, and any other disclosures required by law, rules or regulation.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the subject matter of this Agreement and supersede 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.
  7. 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 Property 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 Property or the Mobile Messages.
  8. 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).
  9. 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.
  10. 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.
  11. 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.
  12. 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.