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.
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.
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.
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:
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.
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.
© 2015 Opt It, Inc. All rights reserved.