Manage all of your lead generation activities in one place.
Use our state-of-the-art, patented technology to safely move your data anywhere it needs to go whenever you need it there.
Create and execute a wide variety opt-in advertising strategies to accomplish your goals.
Publishers, interested in an additional revenue stream, can monetize their content without the user ever leaving their website.
The Connections Platform and all the Services found available within it, are provided by and thus you are contracting with:
450 Park Ave. South,
New York, NY 10016
Advertiser Terms and Conditions
These Advertiser Terms and Conditions ("Agreement") constitute the agreement between Opt-Intelligence, Inc. ("Opt-Intelligence") and you ("Advertiser"), as the Advertiser 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.
I. DEFINITIONS The following terms shall have the respective meanings ascribed below.
1.1 “Agreement” means the Order Form, together with the Terms and Conditions.
1.2 “Applicable Laws” means all applicable present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes and executive orders of any international, United States, municipal or other governmental or judicial authorities, including the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, the Fair Debt Collection Practices Act, the Federal Communications Act, the Amended Telemarketing Sale Rule, the Telephone Consumer Protection Act of 1991 (TCPA), the CAN-SPAM Act of 2003 and all rules and regulations promulgated under any of the foregoing.
1.3 “Client” means the entity or person referenced on the Order Form as the subscriber to the Services.
1.4 “Client Materials” means any images, logos or other content or materials furnished, uploaded or input by Client in connection with the Services or this Agreement. For clarity, “Client Materials” do not include the Leads.
1.5 “Connections” means Opt-Intelligence’s proprietary online software-as-a-service platform, which facilitates the transmission, validation and/or use of Leads, including all software, hardware and other technology, content or materials incorporated in or used by Opt-Intelligence in connection with such platform.
1.6 “Effective Date” means the date on which Client accepted this Agreement.
1.7 “include” or “including” means include or including without limitation.
1.8 “Intellectual Property Rights” means, collectively: all rights with respect to trademarks, service marks, trade dress, logos, copyrights, rights of authorship and patents; all database rights, moral rights, inventions, rights of inventorship, rights of publicity and privacy, trade secrets, know-how, and rights under unfair competition and unfair trade practices laws; all other worldwide intellectual and industrial property rights related thereto; and all applications, registrations, derivative works or renewals relating to any of the foregoing.
1.9 “Lead(s)” means information pertaining to an individual or entity that Client provides or makes available to Opt-Intelligence or that is otherwise processed on behalf of Client via the Services.
1.10“Order Form” means the online registration form by which Client subscribed to specified Services pursuant to these Terms and Conditions, which form may be updated by the Parties from time to time to reflect Client’s election of additional or different Tiers.
1.11“Party” means either Client or Opt-Intelligence; “Parties” means, collectively, Client and Opt-Intelligence.
1.12“Services” means the the applicable Tiers of Connections services to which Client has subscribed by means of an Order Form.
1.13“Terms and Conditions” means these terms and conditions, to which the Order Form is subject and which, together with the Order Form, constitute the Agreement.
1.14“Tier(s)” means categories of services provided by Opt-Intelligence by means of Connections, as referenced on the Order Form.
2.1 Services. Opt-Intelligence will provide the Services in accordance with this Agreement. Opt-Intelligence reserves the right to modify or upgrade any Services and to terminate any free Services at any time at its sole discretion. Client may modify the Tiers to which it subscribes from time to time by entering into updated Order Form(s). Opt-Intelligence grants Client a non-exclusive license during the Term to use the Services for its internal business purposes, subject to all of the terms and conditions hereof. Client may not sublicense, assign or transfer the foregoing license without Opt-Intelligence’s prior written consent. All rights not expressly granted by Opt-Intelligence herein are reserved by Opt-Intelligence. Client hereby grants to Opt-Intelligence a non-exclusive, royalty-free license to use the Leads during the Term solely for purposes of the provision of the Services.
2.2 Restrictions. Client shall not modify, decompile, disassemble or otherwise reverse engineer any software included in Connections, create any derivative works based on Connections or attempt to violate or circumvent any security features of the Services.
2.3 Support. Opt-Intelligence will use commercially reasonable efforts to respond within a reasonable time to inquiries with respect to issues with the Services submitted to the email address that it designates for such matters.
Client shall pay to Opt-Intelligence any fees due hereunder, on a monthly basis or as otherwise specified on the Order Form, in U.S. Dollars, in accordance with the Payment Terms set forth on the Order Form. Opt-Intelligence may modify any fees payable hereunder on at least sixty (60) days’ prior written notice. If any fees are due hereunder, we will charge or debit your payment method, as applicable, on the Effective Date and thereafter on a monthly basis or according to such other payment cycle as may be specified on the Order Form.
IV. TERM & TERMINATION
4.1 Term. This Agreement shall be effective as of the Effective Date and shall remain in effect thereafter until terminated by either Party as provided herein.
4.2 Termination. Either Party may terminate this Agreement at any time effective immediately. We may terminate by providing notice to you via email or by a posting on Connections. You may terminate by electing to do so by means of the Connections dashboard. If you have prepaid any fees hereunder, we will refund to you, on a pro rata basis, any amounts that have not yet accrued hereunder. Upon termination of this Agreement, the licenses granted herein will terminate immediately, and Client shall cease use of Connections. The following provisions hereof and any other provisions that, by their sense or context would reasonably be deemed to survive, shall survive the expiration or sooner termination hereof: Sections 1, 2.2, 2.4, 2.5 and 5-9. Termination of this Agreement shall not limit either Party from pursuing any other remedies available to it, including injunctive relief.
Client shall indemnify and defend the Opt-Intelligence Indemnified Parties and hold them harmless from any and all losses, damages, judgments, settlements, liabilities, costs or expenses, including reasonable attorneys’ fees, related to any actions, proceedings, claims or lawsuits (i) that would, if true, constitute a breach of any of Client’s covenants, representations, warranties or obligations hereunder, or (ii) arising out of the Client Materials, the Leads or Client’s products or services or any promotions thereof.
CLIENT ACKNOWLEDGES THAT CONNECTIONS AND THE SERVICES ARE PROVIDED BY OPT-INTELLIGENCE ON AN “AS IS” BASIS, AND THAT OPT-INTELLIGENCE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO CONNECTIONS OR THE SERVICES. OPT-INTELLIGENCE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; NOR DOES OPT-INTELLIGENCE MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES.
VII. LIMITATION OF LIABILITY
OPT-INTELLIGENCE SHALL NOT HAVE ANY LIABILITY TO CLIENT IN CONNECTION WITH THIS AGREEMENT FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY INDIRECT OR SPECIAL DAMAGES, LOST DATA, LOST REVENUE OR LOST PROFITS, REGARDLESS OF WHETHER OR NOT OPT-INTELLIGENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OPT-INTELLIGENCE'S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES OF ANY KIND IN CONNECTION WITH THE SERVICES OF THIS AGREEMENT SHALL BE THE TOTAL AMOUNTS PAID BY CLIENT TO OPT-INTELLIGENCE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PROVISIONS OF THIS SECTION 7 REASONABLY ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES; AND THAT THE FINANCIAL TERMS HEREOF REFLECT THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
VIII. PROPRIETARY RIGHTS
As between the Parties: (x) Opt-Intelligence owns all right, title and interest in and to Connections and the Services, including all Intellectual Property Rights inherent therein or appurtenant thereto, and (y) Client owns all right, title and interest in and to the Client Materials and the Leads, including all Intellectual Property Rights inherent therein or appurtenant thereto.
This Agreement shall be governed by the laws of the State of New York without reference to its principles of conflicts of law, and shall be deemed to be executed in the State of New York. In any legal action relating to this Agreement, each of the Parties agrees (a) to the exercise of jurisdiction over it by a state or federal court in the County and State of New York; and (b) that if it brings an action, it shall be instituted exclusively in one of the courts specified in this Section 9. All notices, including notices of address change, required to be sent hereunder shall be in writing delivered by email, registered or certified mail, email or by reputable overnight delivery service to the address specified on the Order Form (if to Client) or to Opt-Intelligence, Inc., Attention: Customer Support, 401 Park Ave South, 10th Floor, New York, NY 10016, USA (email: firstname.lastname@example.org), with a copy by email to Opt-Intelligence’s legal counsel at Jeremy@PomeroyLawGroup.com (if to Opt-Intelligence). Notices may be changed upon written notice sent in accordance with this Section 9. 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. Opt-Intelligence shall not be in default by reason of any failure in performance of this Agreement if such failure arises, directly or indirectly, by reason of any cause outside Opt-Intelligence’s reasonable control. 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. Client may not assign or delegate any of its rights or obligations hereunder without the prior written consent of Opt-Intelligence. This Agreement shall be binding on the successors and permitted assigns of each of the Parties. This Agreement constitutes the complete agreement between the Parties with respect to the subject matter hereof and supersedes all previous agreements or representations, written or oral, with respect to the subject matter herein. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party hereto. 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.
Web Publisher Terms and Conditions
These Web Publisher Terms and Conditions (the "Agreement") constitute the agreement between Opt-Intelligence, Inc. ("Opt-Intelligence") and you ("Client"), the user of the services described below.
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, including 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 to Registrants via an offer placement, and the transfer of Registrant Data to one or more advertisers 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, Client 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 Client at registration which will allow Client access to one or more configuration pages ("Configuration Pages") that configures the Opt-Intelligence System to incorporate the Offer Placement on the Client Website, the delivery of Registrant Data to Opt-Intelligence and the serving of the number of offers by the advertisers selected by Client.
Opt-Intelligence reserves the right to make changes to the terms and conditions of this Agreement at any time. Client\'s continued use of the Services after any such modification and notification thereof shall constitute Client\'s consent to such modifications
I. DEFINITIONS. The following terms shall have the respective meanings ascribed below.
1.1. "Client Revenue Share" shall mean the Net Offer Revenue times the Net Offer Revenue Percentage.
1.2. "Client Website" shall mean the website(s) of Client specified by Client at the time of registration.
1.3. "Net Offer Revenue" shall mean the amount actually collected from each advertiser by Opt-Intelligence for each Opt-In Customer generated pursuant to the Offer Placement and accepted by an advertiser.
1.4. "Net Offer Revenue Percentage" shall mean the percentage for each Offer Placement set forth on each Configuration Page and as may be modified from time to time by the parties.
1.5. "Offer Placement" shall mean offers from various advertisers served by the Opt-Intelligence System using certain customized software developed by Opt-Intelligence that is incorporated into the Client Website.
1.6. "Opt-In Customer" shall mean a Registrant that chooses or "opts-in" to receive one or more offers from one or more advertisers presented to a Registrant via the Offer Placement.
1.7. "Opt-Intelligence System" shall mean the software, hardware and telecommunications connectivity used by Opt-Intelligence to perform the Services, including without limitation, the collection and validation of Registrant Data, storage of Registrant Data and the transmission of Registrant Data to advertisers whose offers the Opt-In Customers select.
1.8. "Placement ID" shall mean the placement id given to Client by Opt-Intelligence which will enable the serving of offers via Offer Placement.
1.9. "Registrant" shall mean a person visiting, registering or revisiting who is submitting or has submitted in the past, his or her information for any reason on the Client Website.
1.10. "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 Client via the Client Website and then provided by Client to Opt-Intelligence in the course of the provision of the Services.
1.12. "Service Commencement Date" shall mean the date of the acceptance of Client\'s registration application by Opt-Intelligence.
1.13. "Services" shall mean those services described in Section 3 below and also listed on each Configuration Page.
II. CLIENT OBLIGATIONS.
2.1. Offer Placement and Linking License
If applicable, Client shall insert the Offer Placement on the Client Website for the period of time set forth on each Configuration Page. Client grants to Opt-Intelligence a non-exclusive license for the limited purpose of linking the Opt-Intelligence System to the Client Website.
2.2. Collection and Transmission of Registrant Data
Client shall collect and transmit via the Internet at a minimum a Placement ID and any additional Registrant Data to Opt-Intelligence for further delivery of such Registrant Data to specified advertisers selected by Client.
2.3. On-going Assistance
Client shall provide reasonable on-going assistance to Opt-Intelligence with regard to technical, administrative and service-oriented issues relating to the Services.
2.4. Client Hardware and Software
Client shall provide all computer hardware, software and telecommunications systems necessary to connect the Client Website to the Internet.
2.6. Client Representations and Warranties
3.1. Registrant Data Collection and Validation
A. Client may provide certain non-personally identifiable information for each Registrant ("Non-PII Data") to the Opt-Intelligence System in order to match such Non-PII Data to advertiser criteria and present applicable advertiser offers to the Registrant. If Client so elects, such Non-PII Data and/or Registrant Data, if any, will be inaccessible by and will not be made available to Opt-Intelligence until a Registrant becomes an Opt-In Customer. If the Registrant becomes an Opt-In Customer, Client shall transmit to Opt-Intelligence via the Internet the Opt-In Customer\'s Registrant Data, including personally-identifiable information.
C. If applicable, Opt-Intelligence grants to Client a non-exclusive, non-transferable limited license to the Offer Placement as specified on the Configuration Pages solely to serve various advertiser offers to Registrants. Opt-Intelligence grants to Client a non-exclusive, non-transferable license for the limited purpose of linking the Client Website to the Opt-Intelligence System.
D. Opt-Intelligence will validate certain Non-PII Data and certain Registrant Data (if delivered to Opt-Intelligence) in accordance with Opt-Intelligence\'s then current procedures. If such Registrant Data cannot be validated or such Non-PII Data and/or Registrant Data does not match the advertiser criteria, Opt-Intelligence will not present an offer to the Registrant and will delete the Registrant Data, if any is delivered to Opt-Intelligence hereunder, from the Opt-Intelligence System in accordance with its then current policies and procedures. Client acknowledges and agrees that Opt-Intelligence may request certain additional information from a Registrant that indicates he/she is interested in an offer (by clicking on an selection button or other indication), and if the Registrant voluntarily provides such additional information and becomes an Opt-In Customer, Client shall transmit such additional information to Opt-Intelligence. At Client\'s request, Opt-Intelligence will provide such additional information to Client.
E. In the event the Non-PII Data and/or Registrant Data is validated by Opt-Intelligence and the Non-PII Data and/or Registrant Data, as applicable, matches one or more advertisers\' criteria, Opt-Intelligence will present to the Registrant an Offer Placement. The list of advertiser offers will be selected by Client and approved by Opt-Intelligence and will be based upon the matching of the Non-PII Data and/or the validated Registrant Data with the criteria established by each advertiser. Client may at any time remove any advertisers offer(s) from the list of offers that can be presented within its Offer Placement. If the Registrant does not select any offer presented on the Offer Placement, Opt-Intelligence shall delete the applicable Registrant Data, if any, in accordance with its then current policies and procedures.
3.2. Transmission of Registrant Data to Advertisers
A. In the event the Registrant selects one or more of the offers presented on the Offer Placement, Opt-Intelligence shall store such Registrant Data on the Opt-Intelligence System with a date and time stamp attached to such record.
B. Opt-Intelligence may transmit the Registrant Data of such Opt-In Customer to the advertiser(s) whose offer was selected by the Opt-In Customer.
C. In addition to the transmission of the Registrant Data to the applicable advertiser(s), Opt-Intelligence may send the Opt-In Customer an email confirming the selections made by the Opt-In Customer from the Offer Placement 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. If the Opt-In Customer requests his or her name be removed as an Opt-In Customer, Opt-Intelligence will provide such information to the applicable advertiser(s).
Opt-Intelligence will provide Client access to one or more online reports that detail the revenue per thousand page impressions, the offers currently being offered via the Offer Placement and the status of the Client\'s account with Opt-Intelligence.
3.4. Opt-Intelligence Maintenance Responsibilities
Opt-Intelligence agrees that it will reasonably maintain the computer hardware, software and 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 Client\'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 Client. During the incident isolation and troubleshooting process, Opt-Intelligence will communicate incident resolution progress to the Client.
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.
line-height:>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 Client shall cease transmitting Non-PII Data and/or Registrant Data to the Opt-Intelligence System. 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.
A. Opt-Intelligence will defend and indemnify Client 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 Client or Registrant Data or Client-supplied equipment), provided that: (a) Client 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) Client provides Opt-Intelligence with the assistance, information, and authority necessary to perform the above; reasonable, out-of-pocket expenses incurred by Client 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 not furnished by Opt-Intelligence if such infringement would have been avoided by the use of the Services without such programs or data.
margin-left:.5in;text-align:justify\'>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 Client 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. Client assumes the sole responsibility for its content and use of the Opt-Intelligence System, including, without limitation, compliance with all governmental requirements related to Client (including compliance with all Federal Trade Commission rules, regulations and guidelines), Registrant Data and its business. Client 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 Client\'s use of the Opt-Intelligence System, 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 Client or Client\'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 Client, 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 Client of upgrades to Services, if any, that will be installed by Opt-Intelligence on the Opt-Intelligence System prior to such installation, if possible. Opt-Intelligence shall not be responsible for Client\'s telecommunications connections to the Internet (or other telecommunications connection as applicable) or Client\'s computer hardware and software.
EXCEPT AS SET FORTH IN THIS SECTION 5.2(A), CLIENT EXPRESSLY AGREES THAT USE OF THE SERVICES AND ANY OTHER SERVICES PROVIDED BY OPT-INTELLIGENCE ARE AT CLIENT\'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 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 CLIENTS\' 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, Client\'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 Client 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 CLIENT DATA, LOST CLIENT DATA, LOST REVENUE OR LOST PROFITS SUFFERED BY CLIENT 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.
VI. PAYMENT PROVISIONS.
6.1. Client Revenue Share
Opt-Intelligence shall pay to Client the sum of all Client Revenue Share for the offers selected by Client. All payments shall be made in U.S. Dollars by Opt-Intelligence in accordance with the payment terms set forth on each Configuration Page. Client 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 advertisers selected by Opt-In Customers and any and all payments owed to Client by 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 Client and if not so disputed, shall be deemed accurate and accepted as such by Client.
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 Service 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 Client may be used by Opt-Intelligence in its business, provided that such non-identifiable information cannot be linked to Client. 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 Client, 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 Client 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 Client 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 Federal Express (or similar reputable express courier) to the first address listed in the relevant registration application (if to Client) 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.