These Advertiser Terms and Conditions ("Agreement") constitute the agreement between Opt-Intelligence, Inc. ("Opt-Intelligence") and you ("Advertiser"), the advertising client.
Opt-Intelligence is an application service provider, which services (the "Services") include the validation of certain registration data ("Registrant Data") provided to web publisher clients ("Web Publisher Client") by a person visiting, registering or revisiting its website for any reason ("Registrant"), the storage of Registrant Data validated by Opt-Intelligence, the presentation of various advertising offers by various advertisers, including Advertiser, to Registrants via an offer placement, and the transfer of Registrant Data to advertisers, including Advertiser, upon the selection of or opt-in to such offer(s) by a Registrant.
By completing the registration application and accepting the terms and conditions of this Agreement, Advertiser represents that it has read and understands fully the terms and conditions of this Agreement and that its registration application is subject to review and approval or rejection by Opt-Intelligence for any reason or no reason in its sole discretion. Upon approval of the application, Opt-Intelligence will activate the username and password entered by Advertiser at registration which will allow Advertiser access to one or more configuration pages ("Configuration Pages") that configures the Opt-Intelligence System in order to setup the Offer(s), the delivery of Registrant Data to Advertiser.
Opt-Intelligence reserves the right to make changes to the terms and conditions of this Agreement at any time. Advertiser's continued use of the Services after any such modification and notification thereof shall constitute Advertiser's consent to such modifications.
1.1. "Offer" shall have the meaning ascribed to it in Section 2.1 below.
1.2. "Offer Criteria" shall mean that information required by the Advertiser and set forth on the Configuration Page that is used in determining whether or not an Offer will be presented to a Registrant.
1.3. "Offer Page or Offer Placement" shall mean a customized webpage or advertising offer placement developed by Opt-Intelligence that presents one or more offers from various advertisers, including one or more Offers by Advertiser, on or linked to a Web Publisher Client website.
1.4. "Opt-In Customer" shall mean a Registrant that chooses or "opts-in" or completes the Action Required to receive one or more Offers from Advertiser.
1.6. "Per Lead Fee" shall mean the amount set forth on each Configuration Page for the Registrant Data, or portion thereof, ordered by Advertiser as set forth on each Configuration Page, of each Opt-In Customer delivered to Advertiser.
1.7. "Registrant" shall mean a person visiting, registering or revisiting a Web Publisher Client's website and is submitting, or has submitted in the past, his or her information on a Web Publisher Client's website.
1.8. "Registrant Data" shall mean the registration data, including without limitation, Registrant full name, mailing address, email address, phone number, IP address and other demographic data, in digital format delivered by a Registrant to a Web Publisher Client and then provided by a Web Publisher Client to Opt-Intelligence.
1.9. "Service Commencement Date" shall mean the date of the acceptance of Advertiser's registration application by Opt-Intelligence.
1.10. "Services" shall mean those services described in Section 3 below and also listed on the Configuration Page.
II. ADVERTISER OBLIGATIONS
2.1. Development and Delivery of Offer(s) and Offer Criteria
B. Each Offer will be approved or rejected by Opt-Intelligence in its sole discretion. Once approved, the Offer will be available and may be served to various Registrants matching the Offer Criteria. If any Offer is rejected by Opt-Intelligence, Advertiser will be notified in writing.
During the term of this Agreement, Advertiser hereby grants Opt-Intelligence a license to use Advertiser's intellectual property, including without limitation, Advertiser's trademarks, logos and copyrights, solely in accordance with the delivery of the Services hereunder, including the delivery of such trademarks, logos and copyrights included in Offers served to Web Publisher Client websites. In addition, Advertiser grants to Opt-Intelligence a non-exclusive license to use Advertiser's intellectual property in various advertising materials, including, without limitation, press releases and the Opt-Intelligence website located at www.opt-intelligence.com.
2.3. On-going Assistance
Advertiser shall provide reasonable on-going assistance to Opt-Intelligence with regard to technical, administrative and service-oriented issues relating to the Services.
2.4. Advertiser Hardware and Software
Advertiser shall provide all computer hardware and software necessary to connect Advertiser to the Internet.
2.6. Use and Transfer Restrictions on Registrant Data
2.7. Advertiser Representations and Warranties
Advertiser represents and warrants that (i) Advertiser owns or has a valid license to use all intellectual property included in Advertiser's Offer(s), (ii) none of the links to websites contained in an Offer does or will at any time contain any pornographic, racial, ethnic, software pirating or hacking, hate-mongering, or otherwise objectionable content; and (iii) Advertiser will not engage in any illegal activity. Any breach of the foregoing warranties by Advertiser may result, at Opt-Intelligence's sole discretion, in the immediate termination of this Agreement and the forfeiture of any and all monies owed by Opt-Intelligence to Advertiser and the immediate payment of all amounts owed by Advertiser to Opt-Intelligence.
3.1. Registrant Data Collection, Validation and Storage.
B. Opt-Intelligence will validate certain Registrant Data in accordance with Opt-Intelligence's then current procedures.
C. In the event the Registrant Data is validated by Opt-Intelligence and the Registrant Data matches the Offer Criteria established by Advertiser for each Offer, Opt-Intelligence may present to the Registrant one or more of Advertiser's Offers on an Offer Page. The offers presented on any Offer Page will be selected by Opt-Intelligence and will be based upon the matching of the validated Registrant Data with the offer criteria established by each advertiser and other criteria established by Opt-Intelligence, in its sole discretion.
D. All advertising creative must be approved by Advertiser before any use by Opt-Intelligence, the entry of such creative by Advertiser on the Configuration Page shall constitute such approval. No changes shall be made to the approved creative without the express, written consent of Advertiser. Without limiting Advertiser's other remedies, in the event subsequent material changes are made to the approved creative by Opt-Intelligence without the written approval of Advertiser, Advertiser shall not pay the Per Lead Fee(s) or Per Action Required Fee(s), if any, generated by such creative. No incentives whatsoever (in the form of bonuses, gifts, prizes or any other form) will be offered to Registrants in return for selecting the Advertiser's Offer(s) without receiving the express, written approval of Advertiser. Advertiser shall not offer incentives (in the form of bonuses, gifts, prizes or any other form) will be offered to Registrants in return for selecting the Advertiser's Offer(s) without receiving the express, written approval of Opt-Intelligence.
E. For any and all emails sent by Opt-Intelligence to Opt-In Customers related to Advertiser's Offer, Opt-Intelligence will: (1) test all email copy and links with Advertiser prior to sending any such email; (2) obtain Advertiser's written (including email) approval of a successful and confirmed email test; (3) ensure that all emails contain an unsubscribe link for the Opt-In Customer receiving the email; (4) not use the Advertiser's name in the "from" line of the email; and (5) only send emails to Opt-In Customers that have opted-in to Advertiser's Offer(s) or the offers of other advertisers working with Opt-Intelligence.
F. Opt-Intelligence will provide Advertiser with the IP address, origin of the opt-in, date and time for any consumer who issues a complaint against Advertiser as a result of an email message sent by the Opt-Intelligence within 24 business hours of receipt of a request for such information from Advertiser.
3.2. Transmission of Registrant Data to Advertiser
A. In the event the Registrant selects one or more of the Advertiser's Offers presented on an Offer Page, Opt-Intelligence shall store such Registrant Data on its system with a date and time stamp attached to such record.
B. If set forth on the Configuration Page, Opt-Intelligence shall transmit the Registrant Data (specified by Advertiser on the applicable Configuration Page) of such Opt-In Customer to Advertiser in accordance with the data transmission methods and format set forth on the applicable Configuration Page. The information may be transmitted in real time or batched at intervals no more frequently than daily.
C. In addition to the transmission of the applicable Registrant Data to Advertiser, Opt-Intelligence may send the Opt-In Customer an email confirming the selections made by the Opt-In Customer from an Offer Page and information by which the Opt-In Customer may remove his or her name as an Opt-In Customer and any other relevant information as determined by Opt-Intelligence, including content from Advertiser as set forth on the applicable Configuration Page. If the Opt-In Customer requests his or her name be removed as an Opt-In Customer prior to the transmission of the Opt-In Customer's data to Advertiser, Opt-Intelligence will not provide such data to Advertiser. In the event the Opt-In Customer requests his or her name be removed as an Opt-In Customer after the transmission of the Opt-In Customer's data to Advertiser, Opt-Intelligence will either provide such information to Advertiser or provide the Opt-In Customer information on how to unsubscribe from the Advertiser's Offer.
Opt-Intelligence will provide Advertiser access to one or more online reports that detail the Advertiser's Offers currently being offered and the status of the Advertiser's account with Opt-Intelligence.
3.4. Opt-Intelligence Maintenance Responsibilities
Opt-Intelligence will reasonably maintain the computer hardware, software and the telecommunications connections necessary for Opt-Intelligence's provisioning and performance of the Services.
3.5. Telephone Support Services
Opt-Intelligence will provide reasonable telephone support to Advertiser's employees Monday through Friday (excluding United States national holidays), from 8:30 a.m. EST to 5:30 p.m. EST. Opt-Intelligence will coordinate incident isolation, testing and repair work with Advertiser. During the incident isolation and troubleshooting process, Opt-Intelligence will communicate incident resolution progress to the Advertiser.
IV. TERM AND TERMINATION
After the Service Commencement Date, this Agreement shall remain in full force and effect until terminated by either party upon sixty (60) days prior written notice to the other party, unless the Agreement is terminated sooner by either party as provided herein.
Either party may terminate the Agreement upon written notice if the other party:
A. materially breaches its obligations hereunder and such breach remains uncured for thirty (30) days following written notice to the breaching party;
B. becomes insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or the other party applies for or consents to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property (or such receiver, trustee or similar officer is appointed without its consent); or the other party institutes any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction, or any such proceeding is instituted against the other party and is not dismissed within ninety (90) days; or any judgment, writ, warrant or attachment or execution of similar process is issued or levied against a substantial part of the property of the other party and remains unsatisfied for ninety (90) days.
4.3. Effect of Termination
Upon termination of this Agreement, the licenses granted herein will terminate immediately and Advertiser shall cease receiving Registrant Data from Opt-Intelligence. Termination of this Agreement shall not limit either party from pursuing any other remedies available to it, including injunctive relief.
V. WARRANTIES, REMEDIES, LIMITATION OF LIABILITY
5.1. Infringement Indemnity
A. Opt-Intelligence will defend and indemnify Advertiser against a claim that Services furnished and used within the scope of this Agreement infringe a registered United States copyright or issued United States patent (but excluding any infringement contributorily caused by Advertiser or Registrant Data or Advertiser-supplied equipment), provided that: (a) Advertiser notifies Opt-Intelligence in writing within thirty (30) days of the claim, (b) Opt-Intelligence has sole control of the defense and all related settlement negotiations, and (c) Advertiser provides Opt-Intelligence with the assistance, information, and authority necessary to perform the above; reasonable, out-of-pocket expenses incurred by Advertiser in providing such assistance will be reimbursed by Opt-Intelligence.
Opt-Intelligence shall have no liability for any claim of infringement based on the combination, operation, or use of any Services furnished under this Agreement with programs or data, including without limitation, Advertiser creative or Offers, not furnished by Opt-Intelligence if such infringement would have been avoided by the use of the Services without such programs or data.
In the event the Services are held or are believed by Opt-Intelligence to infringe, Opt-Intelligence shall have the option, at its expense, to (a) modify the Services to be non-infringing, (b) obtain for Advertiser a license to continue using the Services, or (c) terminate this Agreement. This Paragraph 5.1 states Opt-Intelligence's entire liability for infringement.
B. Advertiser assumes the sole responsibility for its content, creative, Offers and use of the Services, including, without limitation, compliance with all governmental requirements related to Advertiser (including compliance with all Federal Trade Commission rules, regulations and guidelines), Registrant Data and Advertiser's business. Advertiser shall indemnify, defend and hold harmless Opt-Intelligence, its directors, officers, employees and agents, and defend against any action brought against the same with respect to any and all losses, claims, liabilities, causes of action, debt, damages and expenses of any nature, including, without limitation, attorneys' fees, arising out of Advertiser's use of the Opt-Intelligence Website, the Services, the content, quality, performance and all other aspects of the Registrant Data, including the transmission, maintenance, retention, transfer or access to the Registrant Data or the equipment and facilities used by Advertiser or Advertiser's other use of the Internet.
5.2. Warranties and Disclaimers
i. Services Warranty. Opt-Intelligence warrants for the Term of this Agreement that the Services, unless modified by Advertiser, will perform substantially in accordance with the documentation provided by Opt-Intelligence when operated in accordance with such documentation. Opt-Intelligence will undertake to correct any reported error condition in accordance with its then current technical support policies.
ii. Service Level Warranty. Opt-Intelligence will take all commercially reasonable steps to ensure that the computer hardware and its telecommunications network are running twenty-four hours per day, every day of the year, except for reasonable downtime, including, but not limited to, general maintenance, hardware, Service upgrades, power and telecommunications outages not attributable to the actions or omissions of Opt-Intelligence. Opt-Intelligence, to the extent reasonably possible, agrees that scheduled downtime will be performed during minimum usage periods. Opt-Intelligence will notify the Advertiser of upgrades to Services, if any, that will be installed by Opt-Intelligence on the Opt-Intelligence Website prior to such installation if possible. Opt-Intelligence shall not be responsible for Advertiser's telecommunications connections to the Internet or Advertiser's computer hardware and software.
EXCEPT AS SET FORTH IN THIS SECTION 5.2(A), ADVERTISER EXPRESSLY AGREES THAT USE OF THE SERVICES AND ANY OTHER SERVICES PROVIDED BY OPT-INTELLIGENCE ARE AT ADVERTISER'S SOLE RISK. NEITHER OPT-INTELLIGENCE NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; NOR DOES OPT-INTELLIGENCE OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, THE NUMBER OF OPT-IN CUSTOMERS GENERATED AND DELIVERED TO ADVERTISER BY OPT-INTELLIGENCE OR ITS WEB PUBLISHER CLIENTS, AND ANY OTHER SERVICES PROVIDED BY OPT-INTELLIGENCE.
B. Limitations on Warranties
EXCEPT AS SET FORTH IN SECTIONS 5.2(A)(i) and 5.2(A)(ii) ABOVE, THE SERVICES ARE DISTRIBUTED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
C. Disclaimer of Actions Caused by and/or Under the Control of Third Parties.
OPT-INTELLIGENCE DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM OPT-INTELLIGENCE'S DATA CENTERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH OPT-INTELLIGENCE'S ADVERTISERS' CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH OPT-INTELLIGENCE WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, OPT-INTELLIGENCE CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, OPT-INTELLIGENCE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
5.3. Exclusive Remedies
For any breach of the warranties contained in Paragraph 5.2(A)(i) and/or 5.2(A)(ii) above, Advertiser's exclusive remedy, and Opt-Intelligence's entire liability, shall be the correction by Opt-Intelligence of defects in the Services, or the service levels or, if after repeated efforts Opt-Intelligence is unable to make the Services or the service levels operate in accordance with the warranty, then Advertiser may terminate this Agreement with no further obligations.
5.4. Limitation of Liability
NEITHER OPT-INTELLIGENCE NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL DAMAGES, LOST DATA, LOST REGISTRANT DATA, LOST REVENUE OR LOST PROFITS SUFFERED BY ADVERTISER OR ANY OTHER PARTY AS A RESULT OF THE OPERATION OR MALFUNCTION OF THE SERVICES, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding anything to the contrary in this Agreement, Opt-Intelligence's maximum aggregate liability for damages under this Agreement shall BE THE TERMINATION OF THIS AGREEMENT. The provisions of this Article V allocate the risks under this Agreement between Opt-Intelligence and Advertiser. Opt-Intelligence's pricing reflects this allocation of risk and the limitation of liability specified herein.
VI. PAYMENT PROVISIONS
Advertiser shall pay to Opt-Intelligence the sum of the (i) number of Opt-In Customer's Registrant Data transferred to Advertiser for an Offer times the Per Lead Fee for that Offer for all Offers of Advertiser, and (ii) number of completed Actions Required by Opt-In Customers of Advertiser's Offer(s) times the Per Action Required Fee for that Offer for all Offers of Advertiser. All payments shall be made in U.S. Dollars by Advertiser to Opt-Intelligence in accordance with the payment terms set forth on the Configuration Page. All past due amounts shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is greater. Opt-Intelligence may, after three (3) days' written notice to Advertiser, suspend the Services under this Agreement, without liability, until all past due amounts have been paid in full, excluding non-payment for amounts disputed in good faith. Advertiser shall provide Opt-Intelligence all necessary information for the completion of the applicable tax forms, including without limitation, IRS Form W-9.
Opt-Intelligence is responsible for tracking, compiling, calculating and delivering the data related to the Offers presented and the Registrant Data delivered to Advertiser selected by Opt-In Customers and any and all payments owed by Advertiser to Opt-Intelligence. Opt-Intelligence's figures and calculations shall be final and binding, unless disputed in writing within ten (10) business days of receipt of the data by Advertiser and if not so disputed, shall be deemed accurate and accepted as such by Advertiser.
VII. GENERAL TERMS
By virtue of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall be limited to the Services and all information clearly marked as confidential. A party's Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party as evidenced by its written records. Non-identifiable information which is not Confidential Information of Advertiser may be used by Opt-Intelligence in its business, provided that such non-identifiable information cannot be linked to Advertiser. The parties agree this Section 7.1 shall survive any termination or expiration of this Agreement for a period of five years, provided with respect to Confidential Information that constitutes a trade secret under applicable law, including without limitation, the Services, the parties obligations under this Section 7.1 shall survive for the longer of five years or so long as such Confidential Information remains a trade secret under applicable law. The parties agree not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than, with respect to Confidential Information received by Opt-Intelligence, to implement this Agreement, and, with respect to Confidential Information received by Advertiser, to use the Services as provided herein. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement.
7.3. Governing Law; Jurisdiction
This Agreement shall be governed by the laws of the State of New York, and shall be deemed to be executed in the State of New York. In any legal action relating to this Agreement, Advertiser agrees (a) to the exercise of jurisdiction over it by a state or federal court in New York, New York or the United States District Court for the Southern District of New York; and (b) that if Advertiser brings the action, it shall be instituted in one of the courts specified in subparagraph (a) above. Opt-Intelligence may institute legal action in any appropriate jurisdiction. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
All notices, including notices of address change, required to be sent hereunder shall be in writing delivered by registered or certified mail or by reputable overnight delivery service to the first address listed in the relevant registration application (if to Advertiser) or to Opt-Intelligence, 37 W 37th Street, 5th Floor, New York, New York 10018 (if to Opt-Intelligence). Notices may be changed upon written notice sent in accordance with this Section 7.4. Notices shall be effective upon receipt.
In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
7.6. Force Majeure
Except for obligations of confidentiality and payment hereunder, neither party shall be in default by reason of any failure in performance of this Agreement if such failure arises, direct or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, default by subcontractors or suppliers, acts of God or of the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, terrorist acts, labor, fire, flood, epidemic, restrictions, and/or strikes.
7.7. Independent Contractor
The parties to this Agreement shall be independent contractors and nothing herein shall be deemed or construed to create a partnership or joint venture between them. Except as expressly described herein, neither party shall have any power whatsoever to obligate or bind the other party hereto in any manner.