Last Modified: November 11th, 2014
PLEASE READ THE CUSTOMER TERMS OF SERVICE AND ALL REFERENCED OR LINKED MATERIALS CAREFULLY BEFORE USING THE MARKETING OPTIMIZER LLC. SUBSCRIPTION SERVICE AND BEFORE PURCHASING CONSULTING SERVICES.
This Agreement is a legally binding contract between you (Customer) and Marketing Optimizer LLC. Marketing Optimizer LLC. provides the Subscription Service and Consulting Services to you subject to and conditioned upon your acceptance of this Agreement. BY ACCESSING AND USING THE SUBSCRIPTION SERVICE IN ANY WAY OR BY RECEIVING CONSULTING SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SUBSCRIPTION SERVICE OR RECEIVE CONSULTING SERVICES. Marketing Optimizer LLC. periodically updates these Terms of Service. You will receive notice when these Terms of Service are modified. The notice will be delivered through the Software and Update pages on the Marketing Optimizer LLC. portal used to access your Marketing Optimizer LLC. Subscription.
“Agreement” means these Customer Terms of Service and all materials referred or linked to in these Terms of Service. “Billing Period” means the period of time for which Customer agrees to prepay fees under an Order Form, and will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a one (1) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months. “Communication Services” means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable Customer to communicate with the public at large or with a group. “Contact” means the contact information, typically unique email address, of a Customer’s customer, prospect, lead, or other individual (other than a User) used with the Subscription Service. “Contact Information” means the name, email address, phone number, online user name(s), telephone number, and similar information voluntarily submitted by visitors to Customer’s landing pages on the Subscription Service, as well as navigational data relating to each visitor’s activity on Customer’s webpages on the Subscription Service. Contact Information does not include Sensitive Information. “Consulting Services” means the professional services provided to Customer as set forth in a mutually agreed upon Order Form, Consultation Agreement, or Statement of Work, which professional services may include training services, installation, integration or other consulting services related to the Subscription Service. “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable billing statement, Order Form or Statement of Work as the Marketing Optimizer LLC. customer. “Customer Data” means all Contact Information and other permitted information submitted by Customer to, or collected by Customer via, the Subscription Service. Customer Data does not include Sensitive Information. “Customer Materials” means all materials that Customer provides or posts, uploads, inputs or submits for public display through the Subscription Service. Suggestions, feedback and comments relating to the functionality or use of the Subscription Service provided by Customer personnel to Marketing Optimizer LLC. are not Customer Materials. Customer Materials does not include Sensitive Information. “Email Send Limit” means the number of emails that Customer may send with the Subscription Service as identified in Customer’s Order Form or its subscription. “Marketing Optimizer LLC.” means Marketing Optimizer LLC., LLC. and any entity which directly or indirectly controls, is controlled by, or is under common control with Marketing Optimizer LLC., LLC. “Marketing Optimizer LLC. Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags incorporated into the Subscription Service by Marketing Optimizer LLC.. “Maximum Contacts” means the maximum number of Contacts Customer is permitted use with the Subscription Service as identified in Customer’s Order Form or its subscription. “Order Form” means the Marketing Optimizer LLC. approved form by which Customer agrees to subscribe to the Subscription Service and which may include Consulting Services. “Sensitive Information” means credit or debit card numbers, personal financial account information, Social Security numbers, passport numbers, driver’s license numbers or similar identifiers, racial or ethnic origin, physical or mental health condition or information, or other employment, financial or health information. “Subscription Service” means the particular edition and elements of Marketing Optimizer LLC.’s web-based Internet marketing applications, tools, and platform subscribed to by Customer, and developed, operated, and maintained by Marketing Optimizer LLC., accessible via http://app.marketingoptimizer.com or another designated URL, and any ancillary online or offline products and services provided to Customer by Marketing Optimizer LLC., to which Customer is being granted access pursuant to this Agreement and a Signup Form. The Subscription Service includes the Marketing Optimizer LLC. Content, and does not include training services, consulting services, and Third-Party Products. “Subscription Term” means the Initial Subscription Term and all Renewal Subscription Term(s), as defined in Section 6, below. “Statement of Work” means the mutually agreed upon statement of work describing the Consulting Services purchased by Customer. “Subscription Fee” means the periodic fees payable by Customer with respect to the Subscription Service under an Order Form. “Third-Party Products” means professional services, online web-based applications and offline software products that are provided by third parties, interoperate with or are used in connection with the Subscription Service, and are identified as being provided by third parties, including without limitation non-Marketing Optimizer LLC. software listed on http://www.marketingoptimizer.com and non-Marketing Optimizer LLC. services listed on other designated websites. “Third-Party Sites” means third-party websites linked to from within the Subscription Service, including without limitation Communications Services. “User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for the benefit of Customer and who have been supplied user identifications and passwords by Customer (or by Marketing Optimizer LLC. at Customer’s request).
2. The Subscription Service
a. Access. During the Subscription Term and as provided in this Agreement, Marketing Optimizer LLC. will provide Customer access to use the Subscription Service. b. Limits. The Subscription Service shall be as selected by the Customer during the subscription process and as indicated in an Order Form. Limits may apply to the number of Contacts, Users, keywords tracked, competitors tracked, and emails per month, as detailed in Marketing Optimizer LLC.’s pricing and subscription terms, currently available at https://www.marketingoptimizer.com/pricing/. Customer’s limited license to access to and use the Subscription Service is governed by the terms of this Agreement and an Order Form. c. Modifications. Marketing Optimizer LLC. modifies the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve its customers’ experience. Nothing in this Agreement shall prohibit Marketing Optimizer LLC. from making such changes to the Subscription Service, provided that no such change to the Subscription Service shall materially reduce the functionality of the Subscription Service provided to Customer during the Subscription Term. Marketing Optimizer LLC. reserves the right to provide some or all elements of the Subscription Service through use of third party providers. d. Additional Features. Customer may subscribe to additional features of the Subscription Service from time to time by entering into an Order Form. Such additional features of the Subscription Service shall, starting with the date on which the parties agree to such addition, be included in the Subscription Service provided and subject to fees payable under this Agreement. e. Free Trial. If Customer registers for a free trial of the Subscription Service, the following terms apply and take precedence over any contrary provisions of this Agreement: Marketing Optimizer LLC. will make the Subscription Service available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the Subscription Service, or (b) if Customer subscribes to the Subscription Service, the start date of that subscription. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference, will prevail in the event of conflict with this Agreement, and are legally binding. During the free trial period, (i) the Subscription Service is provided “as is” and without warranty of any kind, (ii) Marketing Optimizer LLC. may suspend, limit, or terminate the Subscription Service for any reason at any time without notice, and (iii) Marketing Optimizer LLC. will not be liable to Customer for damages of any kind related to Customer’s use of the Subscription Service. Unless Customer subscribes to the Subscription Service before the end of the free trial, all of Customer’s data on the Subscription Service will be permanently deleted at the end of the trial, and Marketing Optimizer LLC. is not obligated to provide Customer with such data thereafter.
3. Customer Support
a. Support. Support for Customer’s use of the Subscription Service is included in Customer’s Subscription Fee. Phone support for the Subscription Service is available 9AM to 6PM Eastern Time, Monday through Friday, excluding US national holidays. Marketing Optimizer LLC. accepts web form support questions 24 Hours per Day x 7 Days per Week at https://www.marketingoptimizer.com/contact-us/. Web form responses are provided during phone support hours only. Marketing Optimizer LLC. attempts to respond to web form support questions within one business day; in practice, Marketing Optimizer LLC.’s responses are generally even faster. Marketing Optimizer LLC. does not promise or guarantee any specific response time. b. Availability. Marketing Optimizer LLC. shall use commercially reasonable efforts to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
4. Consulting Services
Marketing Optimizer LLC. may provide Consulting Services to Customer pursuant to an Order Form or Statement of Work. Fees for these Consulting Services are in addition to Customer’s Subscription Fee for the Subscription Service and are payable at the start of the engagement, or as otherwise set forth in the Order Form or Statement of Work. Unless otherwise agreed, all Consulting Services are performed remotely. For Consulting Services performed on-site, Customer will reimburse Marketing Optimizer LLC. its reasonable cost for all expenses incurred in connection with the performance of any Consulting Services performed at a location other than Marketing Optimizer LLC.’s office, including but not limited to, travel, meals and lodging expenses. Marketing Optimizer LLC. will obtain Customer’s authorization prior to incurring any expense in excess of $500. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of receipt of the invoice. Customer will to provide Marketing Optimizer LLC. access to Customer’s computer via remote data communications and by visits to Customer’s site as reasonably required for Marketing Optimizer LLC. to perform the Consulting Services. All supplies, information and computer resources, including software licenses for the benefit of Customer required to perform the Consulting Services shall be provided to Marketing Optimizer LLC. at Customer’s expense. Customer shall have five (5) days from the completion of the Consulting Services to notify Marketing Optimizer LLC. of any non-conformity of the Consulting Services with the specifications set forth in the applicable Order Form or Statement of Work. If Customer notifies Marketing Optimizer LLC. of a non-conformity during this five (5) day period, and upon review Marketing Optimizer LLC. confirms such a non-conformity exists, Marketing Optimizer LLC. will make commercially reasonable efforts to correct or remedy any such non-conformity. If, at the conclusion of this five (5) day period, Customer fails to notify Marketing Optimizer LLC. of a non-conformity, the Consulting Services are deemed to have been accepted by Customer. Hours purchased as part of a consulting package are nonrefundable and expire as set forth in the Order Form, but in any case no later than one hundred and eighty (180) days from purchase. By agreeing to these terms of service, you grant Marketing Optimizer LLC. the right to use your company logo and data as part or all of a case study document.
5. Fees and Payments
a. Subscription Fees. The Subscription Fee will be as agreed to by Customer in the Order Form and will remain fixed during the Subscription Term unless Customer (i) exceeds its allowed allotment as identified in Customer’s Order Form or its subscription, (ii) changes products or base packages, or (iii) subscribes to additional features or products, including additional contacts, offered by Marketing Optimizer LLC.. Where a price change is applicable to Customer, Marketing Optimizer LLC. will charge or invoice Customer under the new price structure, starting with the next Billing Period in the Subscription Term, except for overage and other a-la-carte usage fees, which be applied during a Billing Period. b. Contact and Email Send Limit Tier Adjustments. If Customer exceeds its Maximum Contacts and/or Email Send Limit, and/or other similar usage limits in a Billing Period, then Customer’s Subscription Fee will be adjusted at the beginning of the next Billing Period up to the current base package and tier price which corresponds with the maximum number of Contacts or maximum monthly email sends from the prior Billing Period, and Marketing Optimizer LLC. will charge or invoice Customer for that adjusted amount. This process will continue for each Billing Period during the Subscription Term. Marketing Optimizer LLC. pricing and limits will be as set forth at https://www.marketingoptimizer.com/pricing/. Marketing Optimizer LLC.’s determination of the number of Contacts in Customer’s marketing community and the number of emails Customer sends shall be conclusive. Subscription Fees will not decrease, even if there is a subsequent reduction in the number of Contacts or emails sent. c. Overage Fees for Exceeding Maximum Email Send Limits. Customer will use best efforts to accurately calculate the number of Contacts it expects to have in its marketing community, and agrees to purchase the appropriate tier of Subscription Service for its anticipated needs. Marketing Optimizer LLC. and its subcontractors will have the right to monitor or audit remotely the number of Contacts in Customer’s marketing community and the number of emails sent by Customer on the Subscription Service. The Subscription Fee will not change during the course of a Billing Period, unless Customer exceeds its Email Send Limit in a Billing Period after notice from Marketing Optimizer LLC.. In such an event, Customer’s Subscription Fee for the then-current Billing Period will be adjusted immediately up to the tier price which corresponds with the maximum number of Contacts in Customer’s marketing community and Customer’s maximum monthly email sends from any prior period, and Marketing Optimizer LLC. will promptly charge or invoice Customer for the increased amount due. Marketing Optimizer LLC.’s determination of the number of Contacts in Customer’s marketing community and the number of emails Customer sends in a month shall be conclusive. d. Payment by credit card. If applicable, Customer will provide Marketing Optimizer LLC. with valid and updated credit card information or bank account information. Customer authorizes Marketing Optimizer LLC. to charge Customer’s credit card or bank account for all fees payable at the beginning of the Initial Subscription Term and all subsequent Billing Periods. Customer further authorizes Marketing Optimizer LLC. to use a third party to process payments, and consents to the disclosure of its payment information to such third party. e. Payment against invoice. If applicable, Marketing Optimizer LLC. will invoice Customer at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period. All amounts invoiced hereunder are due and payable within thirty (30) days from the date of the invoice. Payment instructions shall be as set out on Marketing Optimizer LLC.’s invoice. f. Payment Information. Customer shall ensure that all details provided regarding the Customer’s contact information, billing information and credit card information, where applicable, are correct and undertakes to promptly update such information when changes to such information occurs. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. g. Sales Taxes. All quoted prices and fees are exclusive of sales, value added and similar taxes, which Marketing Optimizer LLC. will charge or invoice as applicable, and Customer agrees to pay any such taxes applicable to its use of the Subscription Service and performance of Consulting Services.
6. Subscription Term and Renewal
a. Initial Subscription Term. The initial subscription term shall begin on the effective date of Customer’s subscription and expire at the end of the period selected during the subscription process (“Initial Subscription Term”), unless earlier terminated in accordance with this Agreement. b. Renewal Subscription Term. Unless either party gives the other written notice that it does not intend to renew the subscription at least forty-five (45) days in advance of the end of the Subscription Term, this Agreement will be automatically renewed for a period equal to the shorter of the Initial Subscription Term or one year (“Renewal Subscription Term”). The Renewal Subscription Term shall be: (i) on the then-current terms and conditions of this Agreement, and (ii) subject to the pricing structure and applicable tiers provided for renewal terms in and Order Form or, if not so specified, as then posted by Marketing Optimizer LLC. at http://www.marketingoptimizer.com/pricing. Should Customer decide not to renew, Customer may send the notice required by this Section 6(b) by email to [email protected] c. End of Subscription Term. The Subscription Term shall end on the earlier of the applicable expiration date or its earlier termination as provided in this Agreement. Except as provided herein, a Subscription Term cannot be canceled before its expiration. Fees for each Subscription Term are non-cancelable and non-refundable, except as specifically provided for in this Agreement.
7. Marketing Optimizer LLC.’s Proprietary Rights
This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are based upon proprietary Marketing Optimizer LLC. technology which may include the Marketing Optimizer LLC. Content. The Subscription Service and Consulting Services are protected by applicable intellectual property and other laws, including patent, trademark, and copyright laws. The Subscription Service and Consulting Services, including all intellectual property rights therein and derivatives and modifications thereto, belong to and is the property of Marketing Optimizer LLC. or its licensors (if any). Marketing Optimizer LLC. owns and retains all copyrights in the Marketing Optimizer LLC. Content and the information provided in connection with Consulting Services. The Marketing Optimizer LLC. Content and such information may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and Customer agrees not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivative works based on the Marketing Optimizer LLC. Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by Marketing Optimizer LLC.. Marketing Optimizer LLC., the Triangle Design, the Marketing Optimizer LLC. logos, and other marks used by Marketing Optimizer LLC. from time to time are trademarks and the property of Marketing Optimizer LLC.. The appearance, layout, color scheme, and design of the Activeinternetmarketing.com site are protected trade dress. Customer does not receive any right or license to use the foregoing. Marketing Optimizer LLC. encourages all customers to comment on the Subscription Service, provide suggestions for improving it, and vote on suggestions they like. Customer agrees that all such comments and suggestions shall be non-confidential and that Marketing Optimizer LLC. shall own all necessary rights to use and incorporate them into the Subscription Service, without payment, compensation or condition of any kind. Marketing Optimizer LLC. may utilize any and all methods, computer software, know-how or techniques developed or used by Marketing Optimizer LLC. while providing the Subscription Service and the Consulting Services and may incorporate the work product in future releases of any of its software or service. Customer agrees that Marketing Optimizer LLC. retains the right to use, without right of accounting, generalized knowledge, experience, and know-how (including processes, ideas, modifications, suggestions, concepts and techniques) relating to the Subscription Service and Consulting Services acquired in the course of providing the Subscription Service and/or the Consulting Services hereunder.
8. Customer’s Proprietary Rights
As between the parties, Customer shall own and retain all rights to the Customer Materials, Customer Data and any works specifically created by Marketing Optimizer LLC. for transfer to Customer where a separate written agreement grants ownership of the work to Customer. This Agreement does not grant Marketing Optimizer LLC. any ownership rights to Customer Materials or Customer Data. Customer grants permission to Marketing Optimizer LLC. and its licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to Customer, and not for any other purpose.
Customer grants Marketing Optimizer LLC. the right to add Customer’s name and company logo to its customer list and any websites that are owned and operated by Marketing Optimizer LLC. . Except for the foregoing, neither party may use the other party’s name or logo without the other party’s prior written consent.
10. Customer Data
11. Use and Limitations of Use
a. Prohibited Use. Customer’s access to the Subscription Service is conditioned upon its representations and warranties that it will not:
- Use, or allow its Users to use, the Subscription Service in violation of the terms of this Agreement;
- Use or allow its Users to use, the Subscription Service in violation of the terms of Marketing Optimizer LLC.’s Acceptable Use Policy at https://www.marketingoptimizer.com/privacy-policy/
- Copy, modify, create a derivative work from, reverse engineer or reverse assemble the Subscription Service, or otherwise attempt to discover any source code, or allow any third party to do so;
- Use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Subscription Service in a manner that sends more request messages to the Marketing Optimizer LLC. servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
- Use the Subscription Service in any manner that damages, disables, overburdens, or impairs any Marketing Optimizer LLC. website or interferes with any other party’s use and enjoyment of the Subscription Service;
- Attempt to gain unauthorized access to the Subscription Service;
- Access the Subscription Service by any means other than through the interface that is provided by Marketing Optimizer LLC. for use in accessing the Subscription Service; and
- Use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
- Unauthorized Use. Any unauthorized use of any Marketing Optimizer LLC. Content or the Subscription Service may violate patent, copyright, trademark, and other laws. Customer agrees to cooperate with Marketing Optimizer LLC. to prevent any unauthorized copying of the Subscription Service or Marketing Optimizer LLC. Content. Customer shall promptly notify Marketing Optimizer LLC. of any unauthorized use of its Users’ identifications and passwords or its account by immediately calling Marketing Optimizer LLC. or submitting a feedback form located at https://www.marketingoptimizer.com/contact-us/
12. Acceptable Use of Communications Services
13. Third-Party Sites and Products
Third-Party Sites and Products are not under Marketing Optimizer LLC.’s control, and Marketing Optimizer LLC. is not responsible for the contents of any Third-Party Site or Product, including without limitation any link contained in a Third-Party Site, or any changes or updates to a Third-Party Site or Product. Marketing Optimizer LLC. is not responsible for any other form of transmission received from any Third-Party Site. The Third-Party Sites and Products are provided to Customer only as a convenience, and the inclusion of any Third-Party Site or Product does not imply endorsement by Marketing Optimizer LLC. of the Third-Party Site or Product or any association of Marketing Optimizer LLC. with it.
Customer will indemnify, defend and hold Marketing Optimizer LLC. harmless, at its expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Marketing Optimizer LLC. (and its officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with Marketing Optimizer LLC. to the extent that such Action is based upon or arises out of (a) Customer’s use of the Subscription Service; (b) Customer’s noncompliance with or breach of this Agreement, (c) Customer’s use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using Customer’s User information. Marketing Optimizer LLC. shall use commercially reasonable efforts to: notify Customer in writing within thirty (30) days of Marketing Optimizer LLC.’s becoming aware of any such claim; give Customer sole control of the defense or settlement of such a claim (provided that Customer may not settle any such claim unless the settlement unconditionally releases Marketing Optimizer LLC. of all liability); and provide Customer (at Customer’s expense) with any and all information and assistance reasonably requested by Customer to handle the defense or settlement of the claim. Customer shall not accept any settlement that (i) imposes an obligation on Marketing Optimizer LLC.; (ii) requires Marketing Optimizer LLC. to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Marketing Optimizer LLC. without Marketing Optimizer LLC.’s prior written consent.
16. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. MARKETING OPTIMIZER LLC. AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, MARKETING OPTIMIZER LLC. CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. THE MARKETING OPTIMIZER LLC. CONTENT MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SUBSCRIPTION SERVICE, CONSULTING SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. MARKETING OPTIMIZER LLC. AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SUBSCRIPTION SERVICE, THE MARKETING OPTIMIZER LLC. CONTENT, AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MARKETING OPTIMIZER LLC. IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
b. No Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER TYPE OF DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR COVER OR LOSS OF USE, DATA, REVENUE OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SUBSCRIPTION SERVICE OR THE CONSULTING SERVICES, WITH THE DELAY OR INABILITY TO USE THE SUBSCRIPTION SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SUBSCRIPTION SERVICE, ANY MARKETING OPTIMIZER LLC. CONTENT, OR FOR THE CONSULTING SERVICES OR OTHERWISE ARISING OUT OF THE USE OF THE SUBSCRIPTION SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE, EVEN IF SUCH PARTY OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY IN ALL CASES.
c. Limitation of Liability. EXCEPT FOR CUSTOMER’S LIABILITY FOR PAYMENT OF FEES FOR THE SUBSCRIPTION SERVICE AND CONSULTING SERVICES AND CUSTOMER’S LIABILITY ARISING FROM ITS INDEMNITY OBLIGATIONS UNDER SECTION 15 (INDEMNIFICATION), IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, LICENSORS OR SUPPLIERS SHALL IN ALL CASES BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
d. Third Party Products. MARKETING OPTIMIZER LLC. DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS USED BY CUSTOMER. MARKETING OPTIMIZER LLC.’S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT AND MARKETING OPTIMIZER LLC.’S LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRD PARTY CONTENT PROVIDED WITH THE SUBSCRIPTION SERVICE SHALL BE SUBJECT TO THIS SECTION. CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK AND AN ESSENTIAL PART OF THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT CUSTOMER’S AGREEMENT TO THIS LIMITATION OF LIABILITY, MARKETING OPTIMIZER LLC. WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO CUSTOMER.
17. Termination, Suspension and Expiration
a. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
b. Suspension for Prohibited Acts. Marketing Optimizer LLC. may suspend Customer’s or any User’s access to the Subscription Service for any of the following causes, and Marketing Optimizer LLC. shall provide prompt electronic or telephonic notice of such event: (i) any use of the Subscription Service by Customer that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) Customer’s use of the Marketing Optimizer LLC. email send service that results in excessive bounce-backs, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
c. Suspension for Non-Payment. Marketing Optimizer LLC. may suspend Customer’s access to all or any part of the Subscription Service for cause upon one (1) days’ notice to Customer of non-payment of any amount due hereunder if such amount remains unpaid at the expiration of such period. Marketing Optimizer LLC. will not suspend the Subscription Service while Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
d. Suspension for Present Harm. If any Customer website on, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, or (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing immediate, material and ongoing harm to Marketing Optimizer LLC. or others, then Marketing Optimizer LLC. may, with reasonably contemporaneous electronic or telephonic notice to Customer, suspend all or any access to the Subscription Service. In this extraordinary circumstance, Marketing Optimizer LLC. will use commercially reasonable efforts to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.
e. Effect of Termination or Expiration. Immediately upon termination or expiration of this Agreement as provided herein, Customer shall cease all use of the Subscription Service and return or destroy all Marketing Optimizer LLC. property in its possession. If Customer terminates this Agreement for cause, Marketing Optimizer LLC. shall promptly refund any fees that Customer has previously paid covering use of the Subscription Service after the effective date of such termination. If Marketing Optimizer LLC. terminates this Agreement for cause, Customer shall promptly pay all unpaid fees due through the end of the Subscription Term. Fees are non-refundable except as specifically provided for in this Agreement.
f. Retrieval of Customer Data. Upon request by Customer made within thirty (30) days after the date of termination or expiration of this Agreement, Marketing Optimizer LLC. will provide Customer with temporary access to the Subscription Service to retrieve, or Marketing Optimizer LLC. will provide Customer with copies of, all Customer Data then in its possession or control. After such thirty (30) day period, Marketing Optimizer LLC. shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or control.
a. Amendment; No Waiver. Marketing Optimizer LLC. may update and change any part or all of this Agreement, including but not limited to the fees and charges associated with the use of the Subscription Service. Marketing Optimizer LLC. may update and change any part or all of this Agreement. If Marketing Optimizer LLC. updates or changes this Agreement, the updated Agreement will be posted at https://www.marketingoptimizer.com/privacy-policy/. The updated Agreement will become effective and binding on the next business day after it is posted. When Marketing Optimizer LLC. changes this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. Marketing Optimizer LLC. encourages Customer to review this Agreement periodically. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
b. Applicable Law. To the maximum extent permitted by law, this Agreement and all Order Form(s) shall be governed by the laws of the State of Michigan, U.S.A. without reference to conflicts of law principles, and both parties hereby consent to the exclusive jurisdiction and venue of courts in Leelanau, Michigan, U.S.A. in all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services. Use of the Subscription Service is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph.
c. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
e. Relationship of the Parties. Marketing Optimizer LLC. and Customer agree that no joint venture, partnership, employment, or agency relationship exists between Customer and Marketing Optimizer LLC. as a result of this Agreement, any Order Form or Customer’s use of the Subscription Service or provision of the Consulting Services.
f. Compliance with Laws. Marketing Optimizer LLC. will comply with all applicable U.S. state and Federal laws in its provision of the Subscription Service, the Consulting Services and its processing of Customer Data. Marketing Optimizer LLC.’s provision of the Subscription Service and Consulting Services is subject to existing laws and legal process, including Marketing Optimizer LLC.’s rights and obligations to cooperate and comply with governmental, court and law enforcement requests or requirements relating to Customer’s use of the Subscription Service or information provided to or gathered by Marketing Optimizer LLC. with respect to such use. Marketing Optimizer LLC. reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request. Customer will comply with all applicable laws in its use of the Subscription Service.
g. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable pursuant to applicable law including without limitation the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
h. Notices. Notice shall be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and shall be deemed delivered as of the date of actual receipt. To Marketing Optimizer LLC.: Marketing Optimizer LLC. LLC., 1760 Forest Ridge Dr, Ste A, Traverse City, MI 49686, Attention: General Counsel. To Customer: Customer’s address as provided in Marketing Optimizer LLC.’s account information for Customer. Marketing Optimizer LLC. may give electronic notices applicable to its Subscription Service customer base by means of a general notice via the Subscription Service and may give electronic notices specific to Customer by email to appropriate Customer e-mail addresses on record in Marketing Optimizer LLC.’s account information for Customer. Marketing Optimizer LLC. may give telephonic notice to Customer by calls to appropriate numbers on record in Marketing Optimizer LLC.’s account information for Customer.
i. Entire Agreement. Unless otherwise expressly stated herein, this Agreement (including each Order Form), along with any Marketing Optimizer LLC. exhibit or addendum hereto, including any Order Form, constitutes the entire agreement between Customer and Marketing Optimizer LLC. with respect to the Subscription Service and Consulting Services and supersedes all prior or contemporaneous communications, proposals and agreements, whether electronic, oral or written, between Customer and Marketing Optimizer LLC. with respect to the subject of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Marketing Optimizer LLC. objects to and rejects any additional or different terms proposed by Customer, including those contained in Customer’s purchase order, acceptance or website. Marketing Optimizer LLC.’s failure to object elsewhere to any provisions of any subsequent document, communication, or act of Customer shall not be deemed a waiver of any of the terms hereof. The party’s obligations hereunder are neither contingent on the delivery of any future functionality or features of the Subscription Service nor dependent on any oral or written public comments made by Marketing Optimizer LLC. regarding future functionality or features of the Subscription Service.
j. Assignment. Customer will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without Marketing Optimizer LLC.’s prior written consent, which will not be unreasonably withheld.
k. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
l. Headings. The headings of sections included in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.
m. Language. It is the express wish of the parties that this agreement and all related documents be drawn up in English.
n. Contract for Services. The parties intend this Agreement to be a contract for the provision of services and not a contract for the sale of goods. To the fullest extent permitted by law, the provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If Customer is located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
o. Export. Customer agrees to comply with all applicable export laws.
p. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
q. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Fees and Payments’, ‘Marketing Optimizer LLC.’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Termination, Suspension and Expiration’, and ‘General’.
r. Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form shall control, but only as to that Order Form.