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.

 

BACKGROUND

 

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

 

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.

 

2.5. Client Privacy Policy

Client shall at all times maintain a privacy policy that is reasonably accessible and clearly and concisely informs a Registrant or potential registrant about the collection, use and disclosure of his or her personal information to Opt-Intelligence and/or advertisers upon the selection of an advertiser's offer(s).

 

2.6. Client Representations and Warranties

Client represents and warrants that (i) all Registrant Data is validly obtained by Client and that Client has not generated any Registrant Data by fraudulent means, including without limitation, the pre-population of click-throughs, fake redirects, automated software or other means of generating fraudulent Registrant Data and/or Opt-In Customers; (ii) all Registrant Data transmitted by Client to Opt-Intelligence and further transmitted to selected advertisers complies with Client's privacy policy; (iii) neither the Client Website nor any links to websites on Client Website does or will at any time contain any pornographic, racial, ethnic, software pirating or hacking, hate-mongering, or otherwise objectionable content; and (iv) Client will not engage in any illegal activity. Any breach of the foregoing warranties by Client 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 Client.

 

III. SERVICES

 

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.

 

B. Opt-Intelligence will provide the computer hardware and software necessary to (i) develop and present advertiser's offer(s) via Offer Placement, (ii) collect and validate the Non-PII Data and/or Registrant Data from Client, including, without limitation, personally identifiable information of each Registrant, if any, via the Internet, (iii) store the Registrant Data in accordance with its then current policies and procedures, (iv) transmit or deliver the Opt-In Customer's Registrant Data to the advertiser whose offer was selected by the Opt-In Customer, and (v) connect the Opt-Intelligence System to the Internet, for the term of this Agreement and any renewal thereof. Client acknowledges and agrees (a) that the primary function of the Services is to facilitate the compilation, validation and delivery of the Registrant Data of Opt-In Customers to various advertisers; and (b) that Client is solely responsible for the content, quality, performance, and all other aspects of the Non-PII Data and/or Registrant Data, including the compliance with all laws relating to the transmission, maintenance, retention, transfer, or access to the Registrant Data, including without limitation, laws related to data sovereignty and privacy (including compliance with Client's own privacy policy), and the equipment and facilities used by Client in connection with the Registrant Data.

 

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).

 

3.3. Reporting

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

 

4.1. Term

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.

 

4.2. Termination

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

 

5.1. Indemnities

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.

 

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

A. Warranties

 

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. 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 Client. Opt-Intelligence's pricing reflects this allocation of risk and the limitation of liability specified herein.

 

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.

 

6.2. Tracking

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.

 

VI. GENERAL TERMS

 

7.1. Nondisclosure

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.

 

7.2. Ownership

Opt-Intelligence owns all right, title and interest in and to the Opt-Intelligence System, its intellectual property, the Services, including without limitation, any technology developed by or on behalf of Opt-Intelligence. Client owns all right, title and interest in and to the Client Website and its intellectual property. Each of Client, Opt-Intelligence and advertiser shall have the right to use and transfer the Registrant Data in accordance with the terms of this Agreement and any applicable privacy policy.

 

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.

 

7.4. Notice

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.

 

7.5. Severability

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.