Terms of Use

THESE TERMS OF USE ("TERMS OF USE") WITH OFFERPOP CORPORATION, A DELAWARE CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS AT 36 E 31ST STREET, 8TH FLOOR, NEW YORK, NY 10016 ("OFFERPOP") GOVERN YOUR TRIAL, PURCHASE AND ONGOING USE OF SERVICES AS DEFINED BELOW. BY ACCEPTING THESE TERMS OF USE, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS OF USE, YOU AGREE TO BE BOUND BY ALL TERMS HEREOF. IF YOU ARE ENTERING INTO THESE TERMS OF USE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS OF USE, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF USE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

These Terms of Use were last updated on May 24, 2013.

1. DEFINITIONS.

1.1. "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2. "Ancillary Services" means fee-based consulting or training services Offerpop may perform pursuant to a statement of work ("SOW") issued pursuant to these Terms of Use.

1.3. "Campaign" means a marketing campaign or other social media marketing event operated by you on a Third Party Site by use of the Offerpop Applications, including without limitation, any social media online contest, competition, sweepstakes, or other promotion.

1.4. "Campaign Materials" means all electronic data, video, artwork, screen names, graphics (including logos), photos, profiles, audio (including music), links, software or written content or any other files, or any other information supplied by you, your Users or Participants, or reports and other Campaign data generated by use of the reporting and tracking features of the Offerpop Applications, that you, your Users or Participants submit, store, post, display, transmit or otherwise use together with the Subscription Services, but excluding any Offerpop Applications, templates, sample or demonstration content or files utilized or provided by Offerpop as part of the Services.

1.5. "Documentation" means the online user instructions and help files made available by Offerpop as part of the user interface for the Subscription Services, as updated from time to time.

1.6. "Offerpop Applications" means social media marketing campaign software tools and other applications supplied by Offerpop for access by you for use in conjunction with the Subscription Services, including any optional modules, custom or standard enhancements developed by Offerpop, updates and upgrades, including associated offline components, but excluding Third Party Sites.

1.7. "Order" means either (i) an Order Form or (ii) in the absence of an Order Form, the online process for your selection of the Services and/or Third Party Sites you wish to purchase, acceptance of the terms of this Agreement and any supplementary terms applicable to the selected Services and/or Third Party Site (if any), and payment of applicable fees.

1.8. "Order Form" means the ordering documents for Services purchased from Offerpop that are executed hereunder by the parties from time to time. Order Forms shall be deemed incorporated herein. Customer's Affiliates may purchase subscriptions and use the Offerpop Applications subject to these Terms of Use by executing Order Forms hereunder.

1.9. "Participant" means each individual who participates in a Campaign.

1.10. "Subscription Services" means Offerpop's hosting of the online, web-based Offerpop Applications provided by Offerpop via the URL www.Offerpop.com and/or other designated websites as described in the Documentation, that are ordered by you as part of any trial or under an Order, including associated provisioning, support and maintenance activities related to the foregoing.

1.11. "Services" means the Subscription Services and/or any Ancillary Services.

1.12. "Third Party Sites" means Web sites, Web-based social media subscription services or hosted applications, and any associated offline software products, that are provided by third parties, and that interoperate with the Subscription Services.

1.13. "User" means individuals who are authorized by you to access and use the Offerpop Applications on your behalf, and who have been supplied user identifications and passwords for that purpose. Users may include but are not limited to your or your Affiliates' employees, consultants, contractors and agents, or your or your Affiliates' clients and their employees, consultants, contractors and agents.

2. FREE SERVICES

2.1. Free Service Subscription Term. You may access the Subscription Services on either a temporary trial basis or, provided you qualify on an ongoing basis for the applicable criteria outlined by Offerpop in Offerpop's sole determination, on a limited free basis (either form of access referred to as "Free Services"). Your access to Free Services will commence on the date made available to you by Offerpop and continue until the earlier of (a) the end of the then-current trial period offered by Offerpop at the URL http://www.offerpop.com/pricing/, unless otherwise extended by Offerpop in its discretion, or (b) the start date of any paid Services, whether such are specifically ordered by you or result from an automatic upgrade to a paid Services plan based on your excess usage of Services covered by a no-cost plan as set forth in Offerpop's then-current standard price list located at the URL http://www.offerpop.com/pricing/, or (c) the date on which Offerpop elects in its sole discretion to terminate your access to the Free Services ("Free Services Term"). These Terms of Use shall apply to your use or receipt of the Subscription Services during the Free Services Term except as set forth in this Section 2. You acknowledge and agree that Offerpop may at any time elect to discontinue the availability of Free Services, change the eligibility requirements for Free Services, or require payment of fees for the Free Services. Further, you acknowledge and agree that if you exceed the eligibility requirements for Free Services (for example, a particular number of Participants, or number of Campaigns, or any other metric outlined by Offerpop in its then-current pricing page), you may be required to pay fees for such excess usage as a condition to retaining your eligibility to receive Free Services. Additional trial terms and conditions may appear on the registration web page for the Free Services. Any such additional terms and conditions are incorporated into these Terms of Use by reference and are legally binding and will govern in the event of a conflict with these Terms of Use.

2.2. Campaign Materials for Free Services. ANY CAMPAIGN MATERIALS YOU ENTER INTO THE OFFERPOP APPLICATIONS, AND ANY CHANGES MADE TO THE CAMPAIGN MATERIALS BY OR FOR YOU DURING YOUR FREE SERVICES TERM MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED DURING THE FREE SERVICES TERM, PURCHASE UPGRADED SERVICES, OR MANUALLY DOWNLOAD OR COPY YOUR CAMPAIGN MATERIALS BEFORE THE END OF THE FREE SERVICES TERM.

2.3. AS-IS USE. NOTWITHSTANDING SECTION 8.1 OF THIS AGREEMENT, DURING THE FREE SERVICES TERM, THE FREE SERVICES ARE PROVIDED EXCLUSIVELY "AS-IS" WITHOUT ANY WARRANTY, SUPPORT OR INDEMNITIES OF ANY KIND AND THE WARRANTY DISCLAIMERS IN SECTION 8.2 and 8.3 SHALL SPECIFICALLY APPLY TO THE FREE SERVICES. Please review the Documentation during the Free Services Term so that you become familiar with the features and functions of the Subscription Services before you make your purchase.

2.4. Purchase of Ancillary Services During Trial. Your purchase, if any, of Ancillary Services to be performed during the Free Services Term are governed by Section 3.2 below and these Terms of Use.

2.5. Pre-Release Access to Offerpop Applications. In addition to the terms above, Free Services may include your access to experimental, beta, or other limited release versions of the Offerpop Applications that are identified by Offerpop as such ("Pre-Release Offerings"). While Offerpop's present intentions are to develop and generally release a commercial product from the Pre-Release Offering(s), Offerpop does not commit, promise, or agree to finally release and/or offer for sale the Pre-Release Offering(s), whether or not perfected. Offerpop reserves the right to cease and abandon the Pre-Release Offering(s) at any time without any obligation or liability to you or any third party whatsoever. YOU ACKNOWLEDGE AND AGREE THAT (i) THE PRE-RELEASE OFFERINGS MAY HAVE DEFECTS OR DEFICIENCIES WHICH CANNOT OR MAY NOT BE CORRECTED BY OFFERPOP; (ii) THE PRE-RELEASE OFFERING(S) ARE EXPERIMENTAL; (iii) YOU HAVE BEEN INFORMED BY OFFERPOP OF THE UNPREDICTABLE NATURE OF TESTING IN GENERAL. Offerpop shall have no liability to you or any third party for any action brought by or against you alleging that your use or other disposition of any Pre-Release Offering(s) infringes any patent, copyright, trade secret or other intellectual property right of a third party. In event of such an action, Offerpop retains the right to terminate this Agreement and immediately terminate your access and use of the Pre-Release Offering(s). THIS SECTION STATES OFFERPOP'S ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY THE PRE-RELEASE OFFERING(S) OR ANY PART OF THEM OR BY THEIR OPERATION.

3. PURCHASED SERVICES

3.1. Provision of Purchased Subscription Services. Offerpop will make the Offerpop Applications available to you through the purchased Subscription Services pursuant to these Terms of Use and the relevant Orders during a Subscription Term. You agree that your purchases under these Terms of Use and each Order are neither contingent on the delivery of any future functionality or features in the Offerpop Applications nor dependent on any oral or written public comments made by Offerpop regarding future functionality or features of the Offerpop Applications. Your use of the Subscription Services includes the right to access all functionality available in the purchased subscriptions for the specific Offerpop Applications included with your Subscription Services as of the date of your Order. Subsequent enhancements to the Subscription Services made generally-available to all subscribing customers will be made available to you at no additional charge. However, the availability of new Offerpop Applications, or enhancements to the Subscriptions may require the payment of additional fees, and Offerpop will determine at its sole discretion whether access to any other such new Offerpop Applications or enhancements will require an additional fee. Unless otherwise set forth in an Order, these Terms of Use will apply to any updates, upgrades and new modules or offerings subsequently provided by Offerpop to you as part of any purchased Subscription Services.

3.2. Ancillary Services. Offerpop will provide you with Ancillary Services as set forth in the applicable SOW mutually executed by Offerpop and you. Each SOW will include, at a minimum: (i) a description of the Ancillary Services and any work product or other deliverables to be developed and/or provided to you (each, a "Deliverable"); (ii) the scope of Ancillary Services; (iii) the schedule for the provision of such Ancillary Services; and (iv) the applicable fees and payment terms for such Ancillary Services, if not elsewhere specified. All SOWs shall be deemed part of and subject to these Terms of Use. If either you or Offerpop request a change in any of the specifications, requirements, Deliverables, or scope (including drawings and designs) of the Ancillary Services described in any SOW, the party seeking the change shall propose the applicable changes by written notice. Promptly following receipt of the written notice, each party's project leads shall meet, either in person or via telephone conference, to discuss and agree upon the proposed changes. Offerpop will prepare a change order describing the proposed changes to the SOW and the applicable change in fees and expenses, if any (each, a "Change Order"). Change Orders are not binding unless and until they are executed by both parties. Executed Change Orders shall be deemed part of, and subject to, these Terms of Use. In the event that the parties disagree about the proposed changes, the parties shall promptly escalate the change request to their respective senior management officers for resolution.

4. TERMS OF USE OF SUBSCRIPTION SERVICES

4.1. Provision of Subscription Services. Offerpop will: (i) provide to you basic support through http://getsatisfaction.com/offerpop for the purchased Subscription Services at no additional charge during the hours specified at http://getsatisfaction.com/offerpop, and/or upgraded support if made available by Offerpop and purchased by you separately; (ii) use commercially reasonable efforts to make the purchased Subscription Services available 24 hours a day, 7 days a week, with minimal downtime, except for: (a) planned downtime (of which Offerpop will endeavor to provide at least 8 hours notice, and which Offerpop shall schedule to the extent practicable during the weekend hours from 11:00 p.m. U.S. Eastern time Friday to 5:00 a.m. U.S. Eastern time Monday), or (b) any unavailability caused by circumstances beyond Offerpop's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Offerpop's employees), Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Sites; (iii) maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Campaign Materials (the same as Offerpop uses to protect its data) and will use commercially reasonable efforts to restore the Campaign Materials promptly in the event of unavailability due to a failure in the Subscription Services; and (iv) provide the Services in accordance with applicable laws and government regulations.

4.2. Provisioning of Offerpop Applications. Offerpop will host relevant Offerpop Applications (except for off-line components or applications) and may update the functionality and user interface of the Subscription Services from time to time in its sole discretion as part of its ongoing mission to improve the Subscription Services and customers' use of the Subscription Services. Certain Offerpop Applications or portions of the Subscription Services may be subject to other limitations, such as, for example, limits on the number of marketing campaigns or the duration of a marketing campaign. Any such limitations will be specified either in the Order, in Offerpop's pricing page located at the URL http://www.offerpop.com/pricing/ (as updated from time to time) or in the Documentation.

4.3. Content License. Subject to the terms and conditions of these Terms of Use, including Offerpop's confidentiality obligations, you hereby grant Offerpop a limited, non-exclusive, royalty-free, worldwide license to use the Campaign Materials and perform all acts with respect to the Campaign Materials as may be necessary for Offerpop to provide the Services to you. To the extent that Campaign Materials may contain any non-public personally-identifiable data about Users or Participants, you agree to Offerpop's use, collection and disclosure of such non-public personally identifiable information for the purposes authorized under this Agreement in accordance with Offerpop's privacy policy located at: http://www.offerpop.com/privacy-policy/. As between Offerpop and you, you are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Campaign Materials. You understand that the technical processing and transmission Campaign Materials is fundamentally necessary to use of the Subscription Services. Therefore, you expressly consent to Offerpop's interception and storage of Campaign Materials, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Offerpop. You further acknowledge and understand that Campaign Materials may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Offerpop is not responsible for any Campaign Materials which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Offerpop, including, but not limited to, the Internet, Third Party Sites, and your local network.

4.4. Your Responsibilities. You are responsible for your Users' compliance with these Terms of Use and for your Users' use of the Services, and for ensuring that Users maintain the confidentiality of their passwords and user names. You are responsible for all charges incurred by Users with access to your Offerpop account. You agree that you will not:

  1. Use or permit Users to use the Subscription Services except (a) as permitted by these Terms of Use, and as provided for in the Documentation for the applicable Offerpop Application, and (b) in compliance with laws applicable to your operation of Campaigns;
  2. license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Subscription Services or any Offerpop Application available to any third party, other than to Users or Participants, except as expressly contemplated by these Terms of Use;
  3. use or permit Users to use the Subscription Services to collect, transmit or process: (a) infringing, obscene, threatening, offensive, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (b) any non-public or personally-identifiable data regarding an individual's financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either "Protected Health Information" subject to and defined by the Health Insurance Portability and Accountability Act, or an individual's first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident's financial account;
  4. Use or permit Users to use the Subscription Services to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
  5. Continue to use the Subscription Services in a manner that interferes with or disrupts the integrity or performance of the Subscription Services following Offerpop's notice to you of such use;
  6. attempt to gain unauthorized access to the Subscription Services or its related systems or networks;
  7. use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services;
  8. use any data mining, robots or similar data gathering or extraction methods;
  9. access the Subscription Services or download an Offerpop Application for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Subscription Services; or
  10. copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Offerpop Applications or Subscription Services or any part thereof or otherwise attempt to discover any source code or modify the Offerpop Applications or Subscription Services.
In addition, you are responsible for the lawful operation of each Campaign, including the establishment and administration of official rules, offer terms and eligibility requirements (e.g., age and residency restrictions), the selection of winners, and compliance with regulations governing the Campaign and all prizes that may be offered in connection with the Campaign (e.g., registration and obtaining necessary regulatory approvals). You shall bear all costs of procuring or delivering any prizes, including any associated insurance, taxes, and any other fees associated with any Campaign prizes. You also agree to comply with your privacy policies and any rules or guidelines required by the applicable Third Party Site to administer or communicate about any Campaign you run using the Offerpop Applications. You understand and agree that Offerpop may also be subject to such rules or guidelines, which may in turn condition or limit the features, functions, workflow, look and feel, or content you may use or display on any Campaign. Except for the foregoing (and as required to comply with the requirements of Section 4.5 below), you may not use Offerpop's name, trademarks, trade names in connection with a Campaign or mention Offerpop in the rules or materials relating to the Campaign.

4.5. Use by Participants. You acknowledge and agree that the Offerpop Applications as delivered to you may contain certain notices and disclaimers that limit Offerpop's liability or the liability of Third Party Sites to Participants in connection with a Campaign ("Participant Terms"). You agree that you will not and will not permit any User to obfuscate or remove any Participant Terms from the user interface for the Campaign without Offerpop's knowledge and consent. Should Offerpop consent to the removal of the Participant Terms, or if no Participant Terms are included with the Offerpop Applications, then you will include terms and conditions in your official rules or other terms visible by each Participant (such as a link visible on the user interface of the Offerpop Application, or by using clickthrough or other similar features) that that accomplish the following:

  1. Informs the Participant that (a) you may be collecting non-public personally-identifiable information about them in connection with the operation of the Campaign, (b) your use of the foregoing information will be subject to your privacy policy and (c) Offerpop's use of that information on your behalf will be subject to Offerpop's privacy policy;
  2. Obtains the Participants' consent as required by applicable law to your and Offerpop's use of the information noted in Section 4.5.2 for purposes of operating the Campaign and for the statistical purposes set forth in this Agreement;
  3. Notifies the Participant that the Campaign is in no way sponsored, endorsed or administered by, or associated with, Offerpop and that any references to any of your products, services, or offerings by trade name, trademark, manufacturer, supplier or otherwise do not constitute or imply endorsement, sponsorship or recommendation thereof by Offerpop.
  4. Alerts Participants that Participants must be at least thirteen (13) years of age to participate in a Campaign;
  5. States that each Participant unconditionally releases and holds harmless Offerpop from any and all liability associated with the Campaign.
In complying with the foregoing requirements, you may refer to Offerpop Corporation specifically or generically by use of terms such as "supplier," "vendor," "licensor," "service provider" or other similar term.

4.6. Temporary Suspension. Offerpop monitors all use of the Subscription Services for security and operational purposes. Offerpop may immediately suspend your or your Users' access to the Subscriptions Services or any Offerpop Application in the event that either you or your User is engaged in, or Offerpop in good faith suspects is engaged in, any unauthorized conduct (including any violation of the terms of these Terms of Use, any applicable law or third party right, including the terms of any Third Party Site on which your use of the Subscription Services relies). Offerpop will attempt to contact you prior to or contemporaneously to such suspension, provided, however, that Offerpop's exercise of the suspension rights herein shall not be conditioned upon your receipt of any notification. You agree to (i) notify Offerpop immediately of any unauthorized use of any password or account or any other known or suspected breach of security impacting the Subscription Services; (ii) report to Offerpop immediately and use reasonable efforts to stop immediately any copying or distribution of Customer Material that is known or suspected by you or your User as being unlawful or unauthorized; and (iii) not impersonate another User or provide false identity information to gain access to or use the Subscription Services or Offerpop Application. A suspension may take effect for your entire account and you understand that such suspension would therefore include Affiliate and/or User sub-accounts. You agree that Offerpop will not be liable to you or to any Affiliate or User or any other third party if Offerpop exercises its suspension rights as permitted by this Section.

4.7. Third-Party Sites. Offerpop may offer certain Third Party Sites for sale under Orders or as a free value-added component. The supply of such Third Party Sites to you shall be subject to the terms specified in such Orders or in the applicable clickthrough or similar agreement required by the applicable licensor(s), and are otherwise provided by Offerpop exclusively "AS IS." In addition, the Subscription Services may rely on or require that you access Third Party Sites such as other websites, resources, or services (e.g. Facebook or Twitter). Your or your User's use of outside websites must at all times comply with the terms of service governing such websites. You understand and agree that the availability of the Offerpop Applications, or certain features and functions of the Offerpop Applications, are dependent on the corresponding availability of Third Party Sites or specific features and functions of Third Party Sites. Offerpop will not be liable to you or any third party in the event that changes in Third Party Sites cause the unavailability the Offerpop Applications or any feature or function of the Offerpop Applications. Offerpop may also refer you to third party service providers that offer services related to the Subscription Services or Third Party Sites, including marketing, implementation, customization and other consulting services. Offerpop does not warrant any such Third Party Sites or services, whether or not such Third Party Sites or services are designated by Offerpop as "certified," "approved", "recommended" or otherwise, or the services are provided by a third party referred by Offerpop or that is a member of an Offerpop partner program.

4.8. Accuracy of Customer's Contact Information; Email Notices. You agree to provide accurate, current and complete information as necessary for Offerpop to communicate with you from time to time regarding the Services, issue invoices, accept payment, or other account-related purposes. Therefore, you agree to keep any online account information current and inform us of any other changes in your legal business name, address, email address and phone number. You agree to accept emails from Offerpop at the e-mail address specified by your Users for login purposes. Offerpop may provide any and all notices, statements, and other communications to you through either e-mail, posting on the Subscription Services (or other electronic transmission) or by mail or express delivery service. In addition, you agree that Offerpop may rely and act on all information and instructions provided to Offerpop by Users from the above-specified e-mail address.

4.9. Federal Government End User Provisions. If you or any User is the US Federal Government, Offerpop provides the Services, including related software and technology, in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in these Terms of Use. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Offerpop to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreements.

5. FEES AND PAYMENT TERMS

5.1. Fees. You agree to pay all fees specified in all Orders hereunder and as described in Offerpop's pricing page located at the URL http://www.offerpop.com/pricing/ using one of the payment methods Offerpop supports. Except as otherwise specified in these Terms of Use or in an Order, (i) fees are quoted and payable in United States dollars (ii) fees are based on Services purchased, (iii) payment obligations are non-cancelable as of the applicable due date and fees paid are non-refundable, and (iv) the subscriptions purchased cannot be decreased during the relevant Subscription Term on the Order. All amounts payable under these Terms of Use will be made without setoff or counterclaim, and without any deduction or withholding.

5.2. Payment by Credit Card. Offerpop is pleased to accept payment for certain Services by the supported credit/debit cards set forth on our website ("Credit Card Payments") under the terms and conditions in this Section and any other supplementary terms disclosed to and accepted by you during the payment process, including terms imposed by the applicable Credit Card Payment processor acting on Offerpop's or your behalf. If you purchase Subscription Services through an online Order and pay by credit card, Subscription Service fees shall be due and payable immediately and shall not require the issuance of a corresponding invoice. The processing of a Credit Card Payment shall require the collection of pertinent information including the credit card number, expiration date, name and CVV2 code as it appears on the credit card. Additional required information may include but not be limited to the credit card billing address, a valid e-mail address and phone number of the purchaser, and a valid sales tax exemption number when applicable. Provisioning of the Services that are purchased by Credit Card Payment shall be subject to confirmation of payment receipt in full at the sole discretion of Offerpop. By using a credit/debit card to pay for the Services, you confirm that the card being used is yours. All credit card holders are subject to validation checks and authorization by the card issuer and Offerpop is not obliged to inform you of the reason for any refusal. Offerpop bears no responsibility for your card issuer or bank charging you as a result of Offerpop's processing of your Credit Card Payment in accordance with your instructions.

5.3. Invoices and Payment. If you are not paying by Credit Card Payment, all Subscription Service fees will be invoiced in advance and in accordance with the applicable Order. You acknowledge and agree that Offerpop may charge you an administrative processing fee in connection with certain transactions that you elect not to pay by Credit Card Payment. Fees for Ancillary Services will be invoiced as set forth in an applicable SOW and/or Order. Except as otherwise set forth in the applicable Order or SOW, you agree to pay all invoiced amounts within thirty (30) calendar days of the invoice date.

5.4. Overdue Charges. If Offerpop does not receive fees by the due date, then at Offerpop's discretion, (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (ii) Offerpop may condition future subscription renewals and Orders on payment terms shorter than those specified in Section 5.2 (Invoices and Payment).

5.5. Suspension of Service. If any amounts you owe under these Terms of Use for the Services are forty five (45) or more days overdue (or ten (10) or more days overdue in the case of amounts you have authorized Offerpop to charge to your credit card), Offerpop may, without limiting Offerpop's other rights and remedies, suspend your and your Users' access to the Services or use of any Offerpop Application until such amounts are paid in full.

5.6. Payment Disputes. Offerpop agrees that it will not exercise its rights under Section 5.4 (Overdue Charges) or 5.5 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and you are cooperating diligently to resolve the dispute.

5.7. Taxes. You are solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, "Taxes") arising from Offerpop's provision of the Offerpop Applications and/or Services hereunder, except any taxes assessed upon Offerpop's net income. If Offerpop is required to directly pay Taxes related to your use of the Offerpop Applications or receipt of any Services hereunder, you agree to promptly reimburse Offerpop for any amounts paid by Offerpop.

6. PROPRIETARY RIGHTS

6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Offerpop reserve all rights, title and interest in and to the Offerpop Applications, and the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. Neither you nor any Users will delete or in any manner alter the copyright, trademark, and other proprietary notices of Offerpop, if any, appearing on any Offerpop Application or Documentation.

6.2. Campaign Materials. Except for the limited rights expressly granted to Offerpop under this Agreement with respect to the Campaign Materials, Offerpop does not acquire any right, title and interest in and to any Campaign Materials. Subject to the exceptions set forth in Section 7.3 below, Campaign Materials are deemed your Confidential Information under these Terms of Use.

6.3. Suggestions. Offerpop shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Offerpop Applications and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by you and your Users relating to the Offerpop Applications or the Services. You acknowledge and agree that any Offerpop Application or Services incorporating such suggestions, enhancement requests, recommendations or other feedback shall be the sole and exclusive property of Offerpop and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon Offerpop pursuant to Section 7 below.

6.4. Deliverables. As between Offerpop and you, you exclusively own all right, title and interest in and to any Deliverables that constitute a Customer Material or a modification, translation, abridgment, adaptation or other derivative work of the Campaign Materials, or any other Deliverable expressly identified as being owned by you in the applicable SOW ("Customer Deliverables"), and Offerpop hereby assigns and transfers to you any right, title or interest that Offerpop may acquire in or to any Customer Deliverables upon receipt of payment in full from you. Except for Customer Deliverables, Offerpop shall own all rights, title and interest in and to all other Deliverables, and related intellectual property rights. Subject to terms and conditions of these Terms of Use, and during the Subscription Term, Offerpop hereby grants you a limited, non-exclusive, non-transferable (except in connection with an assignment under Section 12.7 of the Agreement) and terminable license to use the Deliverables solely in connection with your authorized use of the Subscription Service, Offerpop Applications or Third Party Sites. Notwithstanding any other provision of these Terms of Use: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise ("Tools") used by Offerpop to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to you, on the same terms as the Deliverables; and (ii) neither the term "Deliverables" or "Customer Deliverable" shall include the Tools.

6.5. Statistical Information. Notwithstanding anything else in the Agreement or otherwise, Offerpop may monitor your use of the Services and use data related to your use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services. You agree that Offerpop may exploit such information and/or make such information publicly available, provided that such information does not incorporate any Campaign Materials and/or identify you or your Confidential Information. Offerpop retains all intellectual property rights in such information.

6.6. Take Down Notice and Procedure. Offerpop will process and investigate proper notices of alleged copyright or other intellectual property infringement related to material, including any Campaign Material, displayed by use of the Offerpop Applications, or residing on its websites or servers and will respond appropriately, following the guidelines of the Online Copyright Infringement Liability Limitation Act and other applicable intellectual property laws. Where appropriate, and regardless of the merits of the alleged infringement, Offerpop's response may include removing or disabling access to any Campaign Material claimed to be the subject of infringing activity. If Offerpop removes or disables access in response to such a notice, Offerpop may notify the owner or administrator of the affected site or content so that he or she can make a counter notification. Offerpop will, following appropriate investigation, terminate or disable access by repeat infringers. Claims of alleged copyright or other intellectual property infringement must be in writing and directed to Offerpop's designated agent. Offerpop's designated agent may be contacted at: Infringement Claim Designated Agent - Offerpop Corporation at the address in the introductory paragraph of these Terms of Use or legal@offerpop.com.

7. CONFIDENTIALITY

7.1. "Confidential Information" means all confidential or proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of these Terms of Use, pricing and other terms set forth in all Orders hereunder, pre-sales discussions occurring after the Effective Date in which you or your Affiliate explore the possibility of submitting any Order pursuant to these Terms of Use, business information or requirements, marketing plans, specifications, research, software (including but not limited to, the Offerpop Applications, flow of screens, and Documentation), trade secrets, designs, drawings, flow charts, data, computer programs, budget figures, and other financial and business information, or any such information of clients, parents, Affiliates, subsidiaries or agents of a Party.

7.2. Treatment of Confidential Information. The Receiving Party shall not use or disclose any Confidential Information of the Disclosing party for any purpose other than in furtherance of activities governed by these Terms of Use, except with the Disclosing Party's permission.

7.3. Permitted Disclosure. The obligation of nondisclosure set forth herein shall not apply to any Confidential Information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party, including, by way of example but not limitation, Campaign Materials that you, your Users or Participants post on any publicly-available portions of the Offerpop website, or a Third Party Site, or user interface for the Campaign; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information (except for patentable subject matter, which shall not be subject to this exception); or (v) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process.

7.4. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages. The foregoing notwithstanding, you irrevocably waive any right to enjoin or restrain the operation of the Subscription Services as a whole, or Offerpop's or its customers' use of any content or other material used or displayed through the Subscription Services other than your Confidential Information.

8. WARRANTIES; DISCLAIMERS

8.1. Warranties. Each party warrants that it has the power to enter into these Terms of Use. Offerpop warrants to you that (i) the Offerpop Applications will perform in all material respects with the Documentation, (ii) Ancillary Services provided to Customer under a SOW will be performed in a competent and workmanlike manner in conformance with generally accepted industry standards. Offerpop warrants that the Offerpop Applications, and Customer represents and warrants that the Campaign Materials, will be free of any virus, Trojan Horse, cancelbot, or other unauthorized devices developed to disable or to erase, damage or corrupt software, hardware or data detectable by means of commercially-available virus-detection software.

8.2. General Disclaimers. THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 8.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY OFFERPOP AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, OFFERPOP MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT.

8.3. Subscription Service and Offerpop Application Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, OFFERPOP DOES NOT WARRANT THAT THE OFFERPOP APPLICATION OR SUBSCRIPTION SERVICES WILL MEET YOUR OR YOUR USERS SPECIFIC NEEDS, ACHIEVE A PARTICULAR MARKETING OR OTHER BUSINESS RESULT, THAT IS ERROR FREE, THAT YOU OR YOUR USERS OR CONSUMERS WILL BE ABLE TO ACCESS OR USE THE OFFERPOP APPLICATION WITHOUT PROBLEMS OR INTERRUPTIONS, OR THAT THE OFFERPOP SITE AND OFFERPOR APPLICATIONS ARE NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER VIRUS INFECTION.

9. INDEMNIFICATION

9.1. Indemnification by Offerpop. Offerpop, at its expense, will defend and pay any settlement amounts and damages, costs and expenses (including reasonable attorneys' fees) awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding alleging that your use of the Offerpop Application or Subscription Services in accordance with the terms and conditions of these Terms of Use infringes a third party's United States copyright or patent issued as of the Effective Date. The foregoing obligation shall not apply with respect to a claim of infringement if such claim arises out of (i) your use of infringing Campaign Materials (ii) use of the Offerpop Applications or Subscription Services in combination with any software, hardware, network or system not supplied by Offerpop where the alleged infringement relates to such combination, (iii) any modification or alteration of the Subscription Services or Offerpop Application (other than by Offerpop), (iv) if you continue the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement, or (v) your violation of applicable law or the rights of third parties. If any claim which Offerpop is obligated to defend has occurred, or in Offerpop's determination is likely to occur, Offerpop may, in its sole discretion and at its option and expense (a) obtain for you the right to use the allegedly infringing item, (b) substitute a functionality equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate the Agreement and refund to you fees paid by you to Offerpop for the infringing items in an amount pro rated to reflect the period of time between the date Customer was unable to use the Offerpop Application or Subscription Service due to such claim and the remaining days in the current Term.

9.2. Indemnification by Customer. You, at your expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Campaign Materials infringe any trade secret, trademark, copyright, or patent issued as of the Effective Date of any third party; (ii) resulting from a dispute between you and a Participant or other third party, resulting from a Campaign; (iii) arising from your failure to obtain Participants' consent to the terms set forth in Section 4.5 above, or (iv) occurrence of the conditions set forth in Section 9.1(i)-(v) above.

9.3. Conditions. The parties' obligations under this Section are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section are subject to the limitations and exclusions set forth in Section 10 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable third party claim.

10. LIMITATION OF LIABILITY

10.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF USE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT TERMS).

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTIES FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, OR ANY ACTS OF GOD OR OTHER EVENTS OUTSIDE YOUR CONTROL OR OFFERPOP'S CONTROL, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. TERM AND TERMINATION

11.1. Term of Subscriptions. Subscriptions to use the Offerpop Application and/or access the Subscription Services begin on the start date specified in the relevant Order and continue for the period set forth therein (each a "Subscription Term").

11.2. Termination for Convenience. You may terminate a Subscription Term at any time for your convenience for any reason or no reason by providing Offerpop with written notice or by cancelling your Subscription Service using the cancellation procedures made available by Offerpop on the Offerpop website. If you exercise the foregoing right of termination for convenience, you expressly understand and agree that you will not be entitled to a refund of any fees paid or payable for the applicable Subscription Term, which Offerpop may retain or collect in full for the entirety of the purchased Subscription Term.

11.3. Termination for Upgrade. During a Subscription Term, if you wish to upgrade your subscription to a different Offerpop offering of equal or greater value, you may submit an Order hereunder for such new subscription for the length of time remaining on the original subscription, terminate the original subscription, and receive a credit equal to the pro-rata amount of any prepaid fees on the remaining original subscription to be applied to any additional subscription fees related to the upgrade, if any.

11.4. Termination for Cause. These Terms of Use may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of these Terms of Use and does not cure such breach prior to the end of such thirty (30) day period, (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder. Offerpop may temporarily cease performance of its obligations during any cure period.

11.5. Effect of Termination. If Offerpop and you have issued a single Order pursuant to these Terms of Use, termination of that Order will automatically terminate these Terms of Use. If Offerpop and you have issued multiple Orders pursuant to these Terms of Use, termination of one Order will not terminate any other Order or these Terms of Use. However, expiration or termination of these Terms of Use, all subscriptions granted under all Orders issued under these Terms of Use shall terminate immediately. In the event of termination of an Order or these Terms of Use, upon your request made within 30 days after the effective date of applicable termination, Offerpop shall make available to you for download your Campaign Materials in the current format in which it is stored in the Offerpop Application. After such 30-day period, Offerpop shall have no obligation to maintain or provide any Campaign Materials and may thereafter unless legally prohibited, delete all Campaign Materials in its systems or otherwise in its possession or under its control. In the event of termination of a project set forth in an applicable SOW (other than termination as a result of Offerpop's breach), you agree to pay Offerpop all fees due, and unreimbursed out-of-pocket expenses incurred by Offerpop up to the date of termination or expiration of such SOW.

11.6. Survival. Except to the extent expressly provided to the contrary herein, Sections 6 through 12 shall survive the termination of these Terms of Use.

12. GENERAL

12.1. Relationship. The relationship between the parties created by these Terms of Use is that of independent contractors and not partners, joint venturers or agents. This is a non-exclusive arrangement.

12.1. Relationship. The relationship between the parties created by these Terms of Use is that of independent contractors and not partners, joint venturers or agents. This is a non-exclusive arrangement.

12.2. Entire Understanding. These Terms of Use (including any ordering documents or URLs incorporated by reference herein) states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of these Terms of Use. To the extent of any conflict or inconsistency between the provisions in the body of these Terms of Use and any exhibit or addendum hereto or any Order, the terms of such exhibit, addendum or Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or in any other ordering documentation (excluding Orders) shall be incorporated into or form any part of these Terms of Use, and all such terms or conditions shall be null and void.

12.3. Modification and Waiver. Except for Offerpop's modification or update of the Documentation, the Subscription Services or Offerpop Application, or any pricing or other policies referenced by a URL herein, or as necessary to comply with applicable law, rules, regulations, no modification of these Terms of Use, and no waiver of any breach of these Terms of Use, shall be effective unless in writing and signed by both parties. No waiver of any breach of these Terms of Use, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of these Terms of Use. A determination that any provision of these Terms of Use is invalid or unenforceable shall not affect the other provisions of these Terms of Use.

12.4. Governing Law and Venue. These Terms of Use shall be governed by and construed under the laws of the United States and the State of New York excluding its conflict of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms of Use. The state and federal courts located in Borough of Manhattan, New York City, New York, will have exclusive jurisdiction to adjudicate any dispute relating to these Terms of Use. Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.

12.5. Publicity. Offerpop may reference your name and the nature of the Services provided hereunder in Offerpop business development and marketing efforts, including without limitation its web site. Further, you hereby grant Offerpop a limited, royalty-free, revocable, worldwide license to post a sample of any of your publicly-available campaigns developed by use of the Offerpop Applications on Offerpop's website for demonstration and other marketing purposes.

12.6. Assignment. Either party may assign these Terms of Use in its entirety (including all Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of these Terms of Use upon written notice to the assigning party. In the event of such a termination, Offerpop shall refund to you any prepaid fees covering the remainder of the Subscription Terms after the effective date of termination. Subject to the foregoing, these Terms of Use shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third party beneficiaries to these Terms of Use.

12.7. Notices. Except for email notifications as permitted hereunder, all other legal notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the parties accepting these Terms of Use and the relevant Order, with a copy to its General Counsel, or to such other address or individual as the parties may specify from time to time by written notice to the other party. All communications and notices to be made or given pursuant to these Terms of Use shall be in the English language.

12.8. Export. You agree, in connection with your use of the Offerpop Applications and any Services, to comply with all applicable export and re-export control laws and regulations.

12.9. Staffing. Offerpop shall be responsible for staffing decisions with respect to its personnel and the provision of any services under these Terms of Use, and shall have the right to remove or replace any of its personnel assigned to perform any Services under these Terms of Use.

12.10. Force Majeure. Except for performance of a payment obligation, neither party shall be liable under these Terms of Use for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate the Agreement for convenience upon written notice to the other party.