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. 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 by means of electronic ordering or through a written order form (collectively, an “Order”), Optify will provide, and you will pay for, the Service, and any other fees specified in an Order. You acknowledge that the fees for the Service have been communicated to you and that you are aware of all applicable charges. 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 may make the Service available for a trial period to a limited number of Users free of charge until the earlier of (a) fourteen (14) 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 any trial period, this Agreement will automatically terminate. OPTIFY DOES NOT PROMISE TO RETAIN ANY DATA YOU ENTER WHILE USING THE SERVICES DURING YOUR FREE TRIAL UNLESS YOU PURCHASE A SUBSCRIPTION BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

Optify Managed Services

Optify may offer you consulting packages to provide training and Internet marketing expertise. Any such consulting packages will be reflected on an Order.

Customer Support

Customer Support for the online subscription is included in your 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 two (2) business days. More details about support and additional support information will become generally available on the Optify website.

Payment

Optify will charge the subscription fee and any other additional fees you authorize to the credit card provided by you, or invoice you if elected at the time of your Order.

Credit Card Authorization

By authorizing Optify to charge a credit card for the fees associated with your subscription, you are authorizing Optify to automatically continue charging that card (or any replacement card if the original card is renewed, lost, stolen, or changed for any reason by the card issuer, and the issuer informs Optify of the new replacement card account) for all fees or charges associated with your subscription to the Service including any renewal fees as described below. Credit cards that are declined for any reason are subject to a thirty-dollar ($30.00) declination fee. Optify may elect to interrupt Service for fees that reach ten (10) days past due. Service interrupted for nonpayment is subject to a twenty percent (20%) out of outstanding amount reconnect charge. Accounts not paid by due date are subject to a ten dollar ($10) late fee. Accounts that are not collectable by Optify may be turned over to an outside agency for collection. If your account is turned over for collection, you agree to pay the company a processing and collection fee the lesser of one hundred and fifty dollars ($150.00) or as allowed by applicable law.

Automatic Renewal of Subscription

When you subscribe for the Service your subscription will be set to automatically renew upon its expiration. This means that unless you cancel your service within the Subscription Details section on your Account Settings tab at least thirty (30) days prior to its expiration, your account will automatically renew for the same term. At the time of renewal, we will charge your credit card, or invoice you, the then-current fees to renew the Service.

Cancellations and Refunds

All fees and charges paid by you in relation to the Service are nonrefundable, except as otherwise stated herein. Our policies regarding refunds are available at www.optify.net/refunds. Following cancellation, Optify reserves the right to (i) limit or restrict access to the Service and (ii) delete all images, content and information upon cancellation.

Changes in Price

Optify may, at any time, change the price of the Service or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your subscription term will apply to subsequent subscription terms and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your account and stop using the Service. Your continued use of the Service after the effective date of any such change shall constitute your acceptance of such change.

Fee Disputes

You agree that if there are problems or questions regarding the Service that you will contact Optify for assistance and not dispute any charges from Optify unless you terminate for breach as provided in this Agreement. You agree to inform Optify of any credit card information changes, including expiration date. You represent and warrant that you are legally authorized to enter into Agreement including use of the credit associated with the account. You agree to provide Optify with at least thirty (30) days prior written notice to request termination of any recurring credit card authorization and transition to another form of billing.

Term and Termination

This Agreement commences on the date you accept it and continues until all Users subscriptions granted in accordance with this Agreement have expired or been terminated. You may cancel your subscription account for any reason within the Subscription Details section on your Account Settings tab at least thirty (30) days prior notice, however (i) there are no pro-rated periods, (ii) any fees paid by you prior to your termination are nonrefundable, including any fees paid in advance for the term during which you terminate and (ii) monthly subscriptions require an initial ninety (90) day commitment. Termination of your account shall not relieve you of any obligation to pay any accrued fees or charges.
If you elect to use the Service for a free trial period and do not place an Order for use of the Service before the end of that period, this Agreement will terminate at the end of the free trial period.
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
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, for any reason or no reason on ninety (90) days written notice to you, provided that in the event of such termination, you do not have to pay for, and if applicable we will refund any fees related to, Services to have been provided beyond the effective date of such termination. The “Privacy Practices,” “Intellectual Property Ownership,” “Indemnification,” “Limitation of Liability” and “General” sections shall survive termination of this Agreement.

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 you 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 all data, content or information submitted by you to the Services (“Data”) and 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 shall (i) not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct (ii) be responsible for Users’ compliance with this Agreement, (iii) be responsible for the accuracy, quality and legality of all Data submitted by You and of the means by which You acquired the Data, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Optify promptly of any such unauthorized access or use, and (v) use the Services only in accordance with the terms of this Agreement and applicable laws and government 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 Data, or your use of the Service is in breach of this Agreement, 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.

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 fifty percent (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 forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (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, 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 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. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order, the terms of such exhibit, addendum or Order shall prevail.

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 October 31, 2011.