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.
1.3. "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.
1.9. "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
2.2. 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.
2.5. 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
4.1. Provision of Subscription Services. Offerpop will: (i) provide to you basic support through https://community.offerpop.com for the purchased Subscription Services at no additional charge during the hours specified at https://community.offerpop.com, 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.
4.5. 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:
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.
5. FEES AND PAYMENT TERMS
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).
5.6. 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.
6.3. 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.
6.5. 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.
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
8.2. 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.
9.2. 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
10.2. 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.
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.
12.8. 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.