Terms and Conditions
These Optini, LLC, Terms ("Terms")are entered into by, as applicable, the customer signing these Terms or any document that references these terms or that accepts these Terms electronically ("Customer") and Optini LLC ("Optini"). These Terms govern the Customer's use of Optini Products ("Product") and, as applicable, any customization order ("Customization") executed by and between the parties. These Terms and any applicable Customization are collectively referred to as the "Agreement." Optini and Customer hereby agree and acknowledge.
1. The Product. Customer is solely responsible for all content, information, links, videos, ads or any other information ("Content") displayed through use of the Optini Product. Customer shall protect any Customer passwords and takes full responsibility for Customer's own, and third party, use of any Customer accounts. In choosing to display content on a site using the Optini Product, Customer understands that Optini is not responsible for the content of that site. Customer also understands that Optini has NO relationship with any of the sites where the Optini Product will display the Customer's content. The Customer understands that the Optini Product allows alterations to the appearance of a web page only after that web page has been downloaded onto the computer of a user ("User")who has allowed Optini Product to function in their browser. The Customer is solely responsible for getting users to download and enable the Product on the user's computer, phone or other approved device ("Device"). If a user does not agree to install and use the Product, then the Customer's content will not display on that user's device. Optini reserves the right to modify its Product at any time without liability. Optini may also modify these Terms at any time without liability, and the Customer's use of the Product after notice that these Terms have changed constitutes Customer's acceptance of the new Terms. Optini may remove any ad for any or no reason.
2. Content. The unauthorized use of intellectual property in the Optini Product is prohibited. Customers must own or have permission to use any Content that they display. Although Optini does not regularly review Content used by Customers, Optini reserves the right to refuse service on the basis of Content. Content that may be restricted includes but is not limited to malware, explicit content, protected intellectual property, spyware, viruses and private information.
3. Pricing and Payment. Optini currently offers three services: Sites, Alerts and Apps. For Sites Optini charges a $999 One Time Set-Up fee plus $2.00 CPM (Cost Per Thousand). For Alerts Optini charges a $1,599 One Time Set-Up fee and then $0.05 per message. For Apps Optini charges a minimum $2,000 One Time Set-Up fee and then Customer Development Charges. CPM is calculated when a user visits a site where the Optini Product has been instructed to serve content and that content is actually served. For example, if the Customer's content is viewed 1,000,000 times, the CPM cost would be $2,000. Customers may regulate their CPM cost by limiting the number of sites where the Product serves content or by disabling the Product after a certain cost threshold has been met. Optini encourages Customers to be aware of their CPM usage. CPM charges shall be limited to no more than one impression per unique message per hour per user. Billings will occur when a customer agrees to these terms and then once a month thereafter. Payments may be made by credit card, debit card, money order or by check. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Customer is responsible for paying (y) all taxes, government charges, and (z) reasonable expenses and attorneys fees Optini incurs collecting late amounts. To the fullest extent permitted by law, Customer waives all claims relating to charges (including without limitation any claims for charges based on suspected invalid clicks) unless claimed within 60 days after the charge (this does not affect Customer's credit card issuer rights).
4. Cancellation. Customer may cancel the Product through the customer's account if online cancellation functionality is available or by calling Optini or through written notice to the company. Upon cancellation customer will only be responsible for the CPM incurred before Cancelation. If the Customer has been dissatisfied with the Product, the customer may request a refund of the CPM costs incurred since the last billed period.
5. Disclaimer and Limitation of Liability. To the fullest extent permitted by law, OPTINI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. To the fullest extent permitted by law, Optini disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) CPM; (ii) availability and delivery of any impressions, Creative, or Targets on any Optini Property, or section thereof. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER AND CUSTOMER'S BREACHES OF SECTION 1, TO THE FULLEST EXTENT PERMITTED BY LAW: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION TO CUSTOMER'S BUSINESS) WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO OPTINI BY CUSTOMER FOR THE AD GIVING RISE TO THE CLAIM. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including without limitation to acts of God, government, terrorism, natural disaster, labor conditions and power failures.
6. Privacy. Optini respects your desire for privacy. Our Privacy Policy can be found at http://www.optini.com/privacypolicy/. By using the product you are consenting to the terms of our privacy policy.
7. Agency. Customer represents and warrants that (a) it is authorized to act on behalf of and has bound to this Agreement any third party for which Customer advertises (a "Principal"), (b) as between Principal and Customer, the Principal owns any rights to information in connection with those ads, and (c) Customer shall not disclose Principal's information to any other party without Principal's consent.
8. Miscellaneous. THE AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES JOINTLY WROTE IT AND GOVERNED BY UTAH LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OPTINI PRODUCT(S) SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF UTAH, USA, AND OPTINI AND CUSTOMER CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. The Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g. reference to a purchase order number) or oral discussions are void. Each party shall not disclose the terms or conditions of these Terms to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation. Customer may grant approvals, permissions, extensions and consents by email, but any modifications by Customer to the Agreement must be made in a writing executed by both parties. Any notices to Optini must be sent to Optini LLC, 3214 North University Ave #223, Provo, UT, 84604, USA, with a copy sent via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect. Customer may not assign any of its rights hereunder and any such attempt is void. Optini and Customer are not legal partners or agents, but are independent contractors. In the event that these Terms or a Program expire or is terminated, Optini shall not be obligated to return any materials to Customer. Notice to Customer may be effected by sending an email to the email address specified in Customer's account, or by posting a message to Customer's account interface, and is deemed received when sent (for email) or no more than 15 days after having been posted.