OptSpot Service Agreement
OptSpot has licensed a proprietary web-based software package (“Software”) and databases that simplify the process of sending and receiving wireless text messages (“SMS”) to and from cellular phones using short code technology. (Herein, the implementation and maintenance of the foregoing is referred to as the “Service”).
OptSpot hereby grants to Client and its designees, including without limitation (“Designees”), a non-exclusive, nontransferable license to utilize the Service in connection with its businesses in accordance with and subject to terms of this Agreement. For avoidance of doubt, Client specifically understands and agrees that the Service shall remain the sole and exclusive property of OptSpot, and that same is not sold to Client, but is only licensed for the use of Client and Designees. As used herein, a Client is an entity who shall register and create an account via the Service that will allow Client’s members’ employees and Designees’ employees to receive and transmit SMS messages to Client and Designees in accordance with the other provisions hereof.
2.2 Service Provided
The Service to be provided by OptSpot shall include some or all of the following as determined and elected by Client at its discretion:
Account management platform: OptSpot will provide an account management platform that will allow Client and Designees to communicate with Client Customers (“Client Customers are defined as Client’s members’ employees and Designees’ employees who register with Client or Designees to be included in campaigns utilizing the Service) by way of text messaging. Such services will also include tools that will allow Client and Designees to communicate with and access data provided by Client Customers at all times.
The ability to communicate with Client Customers by text messaging through National carriers, including two-way standard and premium campaigns (e.g., for contests or polls) and results reports as requested by Client or Designees.
The ability to communicate with Client Customers by way of multimedia messaging to mobile phones on enables carriers, including the transmission of ring-tones, wallpapers, images, audio, and video elements.
OptSpot agrees to maintain at all times on secure servers, all information concerning each Client Customer and the activities of all Client Customers (“Client Property”) and agrees that all such information is and shall at all times be the sole property of Client. OptSpot guarantees that Client shall have 24/7 access to all databases concerning Client Property with a minimum of 99.5% uptime, subject to the applicable terms and conditions hereof. If the Service is not available to Client for any given month with such guaranteed uptime, or if OptSpot is otherwise in breach of the terms of this Agreement, Client may obtain a rebate from OptSpot with regard thereto and in addition shall have the right upon notice to terminate the Term hereof and any of Client’s obligations hereunder. Client understands that OptSpot is not responsible for ensuring that messages to a Client Customer are received by such Client Customer, but only that such messages appropriately are sent by OptSpot to the applicable address provided by the Client Customer.
2.3 TECHNICAL SUPPORT
OptSpot will provide Client with appropriate technical support to Client during normal business hours of 9 a.m. to 6 p.m. AZ Time. OptSpot technical support will also be promptly available through email contact on a 24x7 basis in the event of a major software failure. OptSpot will work with Client as it relates to a catastrophic failure, or to correct software failures or errors that prevent the software from functioning, on the following basis:
Severity 1 - catastrophic failure, an emergency, condition that causes critical impact and that makes the performance or continued performance of any one or more functions impossible. OptSpot will use its best efforts to resolve technical issues of Severity 1 within twenty-four hours and will develop and communicate to Client a resolution plan within twenty-four hours.
Severity 2 - is a condition which significantly affects and makes the performance or continued performance of any one or more functions difficult and which cannot be circumvented or avoided on a temporary basis by the user. OptSpot will use its best efforts to resolve technical issues of Severity within seventy-two (72) hours and will develop and communicate to Client a resolution plan within seventy-two hours.
OptSpot has advised Client that the documentation provided on the OptSpot website, in white papers, and on the user interface contain material that is protected by United States Copyright Law and trade secret law, and by international treaty provisions. All rights not granted to Client and Designees hereunder are expressly reserved by OptSpot. Client agrees that it shall not remove any proprietary notice of OptSpot from any documentation submitted to it by OptSpot. Client is not authorized to use the source code derived from the object code provided in connection with the Service, nor the OptSpot company name, logos, or any related product, service names, design marks and slogans other than in connection with Client’s use of the Service, including, without limitation, in advising third parties that OptSpot is the vendor being utilized by Client.
All information contained in or relating to this Agreement and Pricing Schedule is “Confidential Information”. Each party agrees that it will maintain the confidentiality of any proprietary information that it may obtain regarding the other by operation of this Agreement and will not, without the prior written consent of the other party, disclose any such Confidential Information to any person who is not a Designee or an employee, attorney, accountant, or financial advisor of the disclosing party or a Designee or utilize any such information for any purpose other than related to this Agreement. Without limiting the generality of the foregoing, OptSpot shall maintain as part of the confidential Client Property any and all information of or relating to Client and any Client Customer, including but not limited to all email addresses, phone numbers, fax numbers, physical mailing addresses, instant message handles, mobile numbers, and pager list(s). Accordingly, without limiting the generality of the foregoing, OptSpot will not compile, buy, sell, rent, use or trade any Client Property or other information concerning or relating to Client or any Client Customers, or send unauthorized emails, instant messages, SMS, direct mail, voice messages or faxes to any Client Customers. For further avoidance of doubt, OptSpot agrees that it will at no time use any of client or customer lists of Client or any other client or customer information received from or in respect of Client or Client Customers for any purpose other than those intended with the furnishing of the Service without Client’s prior express written consent.
OptSpot maintains a Global Permanent Removal List which contains addresses and domains which it will not allow any customer to add to a database. Client understands and agrees that OptSpot has full discretion to block the uploading of any mobile numbers which it has placed on such a list, and will not be liable for the blocking of any such numbers from any database.
Client understands and agrees that Client will not: 1) use or copy OptSpot, except as provided in this Agreement; 2) modify or merge the Software; 3) publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on the Software, in whole or in part, to any other person or entity; 4) remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on the Software; 5) reverse engineer, decompile, translate, adapt, or dissemble the Software, nor shall Client attempt to create the source code from the object code for the Software; or 6) sublicense or assign the license for the Software; and 7) copy this terms and conditions or license agreement for Client’s own use.
The Software shall require Client to include opt-out information as reasonably agreed between OptSpot and Client in each message that is sent using the Software. The Service shall honor all unsubscribe requests it receives. Client must also honor in a timely manner all unsubscribe requests sent directly to Client from those who elected not to use OptSpot’s automated subscribe/unsubscribe features, regardless of how harsh or unpleasant the unsubscribe request may be.
Client may not use OptSpot to:
send unsolicited SMS, or Multimedia (MMS) Messages (a.k.a. "Spam") to anyone;
send unsolicited SMS or MMS Messages to mobile numbers obtained from any purchased or harvested lists in which the recipient did not expressly request to receive Client message;
send SMS or MMS Messages that harass, embarrass, defame, abuse, threaten, are libelous or slanderous, or otherwise violate the legal rights of any individual, group, or organization;
send SMS or MMS Messages that contain or link to pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by OptSpot;
send SMS or MMS Messages that contain copyrighted material, including text, graphics (including trademarked material), software or other material protected by intellectual property law, for which Client do not have lawful authorization to reproduce, publish, or otherwise distribute;
send SMS or MMS Messages that contain a computer virus or other code or files that could damage, harm, or otherwise disrupt the operation of anyone else's computer or storage device, or violate the privacy or security of any individual, group, or organization;
perform or promote illegal activities such as starting or forwarding chain letters, illegal contests or promotions, or any other activity that is illegal;
impersonate, use the name of without expressed permission, or;
violate any applicable governmental laws or regulations or perform any activity that would cause OptSpot to violate any law, statute or regulation.
Although OptSpot has no obligation to monitor the content provided by Client or their use of the Service, it may do so and may remove any such content or prohibit any use of the Service it believes may, be or is alleged to be in violation of the foregoing; provided that OptSpot provides Client with reasonable notice prior to any such removal.
2.7. Best Practices and Privacy Policies
OptSpot, including without limitation the Service and Software, is compliant with the CAN-SPAM laws (http://www.spamlaws.com/federal/108s877.html) and the Mobile Marketing Association best practices and enforces such practices for all of its clients. OptSpot does not have to share with Client the phone numbers of those who complain about Client’s campaigns.
2.8. Addressing Spam Complaints
In the event that Client’s use of the Service results in Client being listed on any anti-spam organization, OptSpot reserves the right to require that Client utilize a “double opt in” service which will require newly added users to verify their assent to receiving Client’s communications after they have been added to Client’s database(s).
2.9. Custom Development
Client agrees and understands that OptSpot owns all intellectual property rights for any custom development work performed by OptSpot as requested by Client.
The parties agree that, upon a breach of Sections 2.4, 2.5, or 2.6 the non-breaching party shall be entitled to seek equitable relief to protect its interests, including preliminary and permanent injunctive relief and each party may also seek damages as a result of such breach.
2.11 Term and Termination
The Term of this Agreement shall commence as of the date hereof and continue for one (1) month. Thereafter, upon notice from Client to OptSpot, the Term will continue until later terminated by either party. Following the expiration or termination of the Term, Client agrees that it shall not thereafter utilize the Service and any of the associated documentation, and OptSpot agrees to provide Client with an electronic copy of the Client Property, only maintain a copy of the Client Property for compliance needs, and not thereafter disclose or use the Client Property.
Any fees not paid in full within 60 days of the date of invoice will incur a 10% late fee and may result in account deactivation. Any fees not paid in full within 90 days of the date of an invoice will incur a 15% late fee in addition to termination of the account. All past due fees shall also accrue interest at 10% or the maximum rate allowed by law, whichever is higher. The prevailing party in any dispute shall be entitled to recover its reasonable attorney, professional, and collection fees and costs. Checks returned for insufficient funds or any charge backs initiated will incur a fee of $25 per incident.
OptSpot and it's Mobile Messaging platform may have errors and may produce unexpected results. Client agrees to backup data and take other appropriate measures to protect programs and data. Client may allow the Designees to use the Service. Client specifically understands that, subject to OptSpot’s performance of its obligations, Client assumes the risk of messages not reaching their destination, and that OptSpot does not and cannot guarantee ultimate delivery of Client’s messages. In that connection, the parties understand that there are factors beyond the control of the parties in connection with use of the Service.
3. DISCLAIMER OF WARRANTIES AND REMEDIES
3.1 Disclaimer of Warranty
OptSpot IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY LAW, OptSpot DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OptSpot DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OptSpot WILL MEET ANY REQUIREMENTS OR NEEDS CLIENT MAY HAVE, OR THAT OptSpot WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN OptSpot WILL BE CORRECTED, OR THAT OptSpot IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. CLIENT SPECIFICALLY UNDERSTANDS THAT THERE ARE MANY REASONS, OUTSIDE OF THE CONTROL OF OptSpot, THAT TEXT MESSAGES MAY NOT REACH THEIR INTENDED RECIPIENTS, AND UNDERSTAND THAT OptSpot CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE ULTIMATE ARRIVAL OF CLIENT’S ALERTS.
If Client shall receive a claim that the use of OptSpot infringes a patent, copyright or other intellectual property right, Client agrees to promptly notify OptSpot in writing thereof. OptSpot, at its own expense and option, may (i) defend and settle such claim, (ii) procure for Client the continuing right to use the Service, (iii) modify or replace the Service to avoid infringement, provided same shall have the same utility to Client; or (iv) refund the license fees paid by Client, if applicable. In addition, OptSpot fully indemnifies Client from any claims that may be brought by third parties in connection with the use of the Service by Client or Designees.
3.2 Limitations of Liability
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT ONE PARTY IS FOUND LIABLE FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY WILL BE LIMITED TO THE ACTUAL DAMAGES INCURRED BY SUCH PARTY.
It is understood and agreed that OptSpot does not intend and will not be required to edit or review for accuracy or appropriateness any content or material that Client or organization distribute using the Software or Service.
This license and the rights granted under this Agreement may not be transferred or assigned by Client without the express written consent of OptSpot. Neither of the parties shall be liable for failures due to causes beyond their control, including, but not limited to, acts of God, acts of government, fire, flood, strikes, or acts or omissions of carriers. Each party warrants that it will comply with all applicable laws and regulations that relate to the performance of this Agreement.
4.2 No Agency
OptSpot is and shall remain an independent contractor with respect to Client. No agency, partnership, joint venture, or employment is created as a result of the Agreement, and the parties do not have any authority of any kind to bind the other party in any respect whatsoever.
THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. CLIENT SHALL NOT EXPORT THE SOFTWARE OR RELATED DOCUMENTATION WITHOUT CONSENT OF OptSpot AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, and changes to this Agreement shall only be effective when in writing and signed by both parties.
4.3 Assignment of Accounts
Neither party may assign its rights, interests or obligations hereunder without the prior written consent of the other party. Without limiting the generality of the foregoing, this Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their heirs, personal representatives, successors, and assigns.
5. PAYMENT. In consideration for providing the Service, Client will pay OptSpot based on the pricing schedule shown in the Pricing Section on a month to month basis in accordance with the Pricing Section. Client will be automatically moved to the next text messaging package upon reaching their current text messaging package in a given month.
6. CANCELLATION POLICY. OptSpot requires a 30 day notification via email sent to email@example.com. Client's account will be charged the normal agreed upon amount for normal monthly usage plus any overages.