Optify Terms of Service

Summary

The following terms, conditions and notices (the “Agreement”) govern your subscription to and use of Optify, Inc.’s online service, offline components and professional services (collectively, the “Service.”). This Agreement is a legally binding contract between you and Optify, Inc. (”Optify”). Your use of the Service constitutes your agreement to all such terms, conditions, and notices, including any materials available on the Optify website incorporated by reference herein, including but not limited to Optify’s privacy policy and legal terms, available at www.optify.net/about/privacy (the “Policies”), the terms of which are incorporated by reference. If you do not agree to this Agreement and/or the Policies, you may not use the Service. We reserve the right to change the terms, conditions, and notices under which the Service is offered, including but not limited to the charges associated with the use of the Service. Such changes will become effective five (5) business days after being posted on the Optify website. If you do not agree to the changes to the Agreement, Policies or the pricing for the Service, you must discontinue your use of the Service immediately.

Subscription

When you purchase a subscription to the Service through an order form (the “Order Form”), you will be given user identifications for the number of individuals for whom you have purchased a subscription and who you authorize to use the Service (each, a “User”). User identifications may not be shared. User identifications may be transferred only with prior permission from Optify. During pre-release, features are subject to delivery by Optify on an as-available basis or, where possible, in the form of offline professional services. As available, the Optify website contains more complete description of these features. You agree that your purchases of the subscription is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Optify regarding future functionality or features.

Trial Period

We will make the Service available to a limited number of Users free of charge until the earlier of (a) thirty days after your acceptance of this Agreement or (b) the start date of any Services ordered by you. If you elect not to purchase a subscription to the Service after the trial period, this Agreement will automatically terminate. OPTIFY DOES NOT PROMISE TO RETAIN ANY DATA YOU ENTER INTO THE SERVICES DURING YOUR 30-DAY FREE TRIAL UNLESS YOU PURCHASE A SUBSCRIPTION BEFORE THE END OF THE 30-DAY TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE 30-DAY FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

Optify Managed Services

Optify offers consulting packages for its customers to provide training and Internet marketing expertise. You will receive packages of Optify consulting hours as part of your subscription.

Customer Support

Customer Support for your subscription is included in your monthly subscription fee. Phone support is available 9 AM to 5 PM PST, Monday through Friday, excluding US national holidays. Email support is available 24 hours, 7 days per week at customers@optify.net. or through our website located at www.optify.net. We will respond to your requests within 2 business days. More details about support and additional support information will become generally available on the Optify website.

Payment

Your subscription fee is billed on the first day Service. The subscription is automatically renewed according to your subscription terms and billed in advance on successive billing dates. The subscription can be canceled for any reason at the end of your current billing period. No refunds of pre-paid subscription fees will be made. Customer will not have access to the Service following cancellation. Optify will delete all images, content and information within 60 days of cancellation. Optify reserve the right to impose a reconnection fee in the event your Service is suspended and thereafter you request access to the Service. If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Payment for additional fees such as consulting packages and migration fees are due at the start of the engagement with no refunds available.

Privacy Practices

Optify believes the privacy of consumers and Internet users is of the utmost importance. By using the Service, you agree to treat personally identifiable information with the highest degree of care and in compliance with all applicable laws and regulations. You agree to maintain and make available an updated and accurate statement of the privacy practices on your website(s), which clearly and conspicuously discloses: (i) the use of cookies, web beacons and other tracking devices, (ii) any reporting, targeting and data sharing activities with Optify and other third parties, and (iii) the collection, use, and disclosure of personally identifiable and non-personally identifiable information regarding visitors to your website. Optify shall at treat your and your Users’ personally and non-personally identifiable information in accordance with Optify’s Privacy Policy. You agree that your use of the Service will comply with all applicable laws, rules and regulations (including industry-standard practices).

License Grant & Restrictions

Optify hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Optify and its licensors. You are responsible for the use of the Services by each of your Users. You may not access the Service if you are a direct competitor of Optify, except with Optify’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or any content provided through the Service (the “Content”) in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

Intellectual Property Ownership

Optify alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to any Optify technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Content, any Optify technology or other intellectual property rights owned by Optify. The Optify name, the Optify logo, and the product names associated with the Service are trademarks of Optify or third parties, and no right or license is granted to use them. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you. You shall not give us any feedback that is subject to any license obligations or other restrictions on use.

Account Information and Data

Your confidential customer data is your property. Optify will not disclose your confidential data without your prior consent. Optify may use aggregate information which does not identify you as an individual for internal analysis and external marketing purposes. We will comply at all times with the Optify Privacy Policy with respect to the use and disclosure of your data.

Linked Sites

During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third-party. Optify and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Optify does not endorse any sites on the Internet that are linked through the Service. Optify provides these links to you only as a matter of convenience, and in no event shall Optify or its licensors be responsible for any content, products, or other materials on or available from such sites. Optify provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Optify represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with online documentation with normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct. You represent and warrant that your use of the Service shall comply with all applicable laws, rules and regulations.

Indemnification

Optify shall defend you against any claim, demand, suit, or proceeding (” Claim”) made or brought against you by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify you for any damages finally awarded against, and for reasonable attorney’s fees incurred by, you in connection with any such Claim; provided, that you (a) promptly give Optify written notice of the Claim; (b) give Optify sole control of the defense and settlement of the Claim; and (c) provide to Optify all reasonable assistance, at Optify’s expense. You shall defend Optify against any Claim made or brought against Optify by a third party alleging that your use of the Service infringes or misappropriates the intellectual property rights of a third party or violates applicable law, rules or regulations, and shall indemnify Optify for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Optify in connection with any such Claim; provided, that Optify (a) promptly gives you written notice of the Claim; (b) gives you sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Optify of all liability); and (c) provide to you all reasonable assistance, at Optify’s expense. This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

Internet Delays

OPTIFY SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. OPTIFY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

Limitation of Liability

THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH OPTIFY MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE OPTIFY SERVICE. WE AND/OR OUR SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES TO OPTIFY’S SERVICES AT ANY TIME. ADVICE RECEIVED VIA THE OPTIFY SERVICES SHOULD NOT BE RELIED UPON FOR PERSONAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION. EXCEPT AS SET FORTH IN THE “REPRESENTATIONS AND WARRANTIES” SECTION ABOVE, WE AND/OR OUR SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS AVAILABLE FROM OPTIFY FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE AND/OR OUR SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE AND/OR OUR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF OPTIFY’S SERVICES, WITH THE DELAY OR INABILITY TO USE THE OPTIFY SERVICE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE OPTIFY SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF OPTIFY’S SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE OR ANY OF OUR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT SHALL OPTIFY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE OPTIFY SERVICE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE.

Termination

We reserve the right, in our sole discretion, to terminate this Agreement and your access to the Service and any related services or any portion thereof at any time, immediately upon notice. The “Privacy Practices,” “Intellectual Property Ownership,” “Indemnification,” “Limitation of Liability” and “General” sections shall survive termination of this Agreement for any reason.

Customer Reference

You agree that we can use your company name and logo in connection with marketing and promoting Optify.

Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of Optify but may be assigned without your consent by Optify to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Optify directly or indirectly owning or controlling 50% or more of you shall entitle Optify to terminate this Agreement for cause immediately upon written notice.

Notice

Optify may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Optify’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Optify’s account information. Such notice shall be deemed given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Optify (such notice deemed given when received by Optify) at any time by any of the following: letter sent by confirmed facsimile to Optify at the following fax number: (206) 388-4234; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Optify at the following address: Optify, Inc, 710 2nd Avenue, Suite 840, Seattle, WA 98104; in either case, addressed to the attention of: Chief Financial Officer.

General

This Agreement shall be governed by laws of the State of Washington and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Optify as a result of this agreement or use of the Service. The failure of Optify to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Optify in writing. This Agreement, together with any applicable Order Form and the Policies, comprises the entire agreement between you and Optify and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

Questions or Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please send email us at customers@optify.net.

This Agreement was last revised July 20, 2009.