Last updated January 22, 2013.
PLEASE READ THIS AGREEMENT CAREFULLY. BY PROVIDING YOUR PAYMENT INFORMATION AND/OR REGISTERING FOR THE OPTIM.AL SERVICE, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
2. Optim.al Service.
a. The Optim.al Service as referenced herein is available via the Optimal website with a home page URL(s) of http://*.optim.al or *.optimalsocial.com (the "Site"). Optimal offers services to advertisers enabling (i) the creation, launch and optimization of advertising ("Advertisements") for placement on those advertising systems, exchanges, networks or websites that Optimal has a relationship with including Facebook (collectively, the "Optimal Inventory"); (ii) the creation and launch of promotions, sweepstakes, games, and contests (collectively, "Promotions", and together with Advertisements, "Campaigns") on the Optimal Inventory; and (iii) access to certain Licensed Material (as defined below) for use and display in such Campaigns through a search and browsing interface within the "Images" tab and/or via "Buy Images" link(s) within the Optim.al Service on the Site, or via other means as designated within the Optim.al Service (the "optim.al Image Service"), and (iv) access to insights, data and analytics (“Analytics” or “Analytics Services”), including reports that specify audience characteristics of a particular brand, keyword, object or inhabitants of a certain location ("Expander", "Explorer" or “Audience Matrix”) (such services collectively referred to herein as the "Optim.al Service" or the "Services"). The Optim.al Service allows You to upload text, images, certain Licensed Material, graphical advertising files, components or HTML code that causes the display of Campaigns, and to display and modify such Campaigns (based on certain targeting or trafficking parameters You provide) on the Optimal Inventory. Third party operators of Optimal Inventory are also referred to herein as "Inventory Partners".
b. The Optim.al Service also allows You to subscribe to various services plans as designated on the Site, or acquire "Optim.al Credits," which You can use for various services, including the optim.al Image Service and to generate and purchase reports that aggregate certain Campaign metrics and information regarding Campaign end user participants (each a "Participant" and collectively, the "Participants").") Optimal may grant You Optim.al Credits from time to time for promotional or other reasons. All Optim.al Credits are nonrefundable and expire 12 months from their grant date or purchase date. The current number of Optim.al Credits available for Your use is available in the user interface of the Optim.al Service.
c. If You create a Campaign within the Optim.al Service, You may select certain Campaign parameters (such as rate type, pricing, daily spend maximum, eligibility, selection criteria or targeting parameters) within the Optim.al Service. Optimal may place budget and pacing limits with its Partners and monitor them via its software to make sure Your Campaign parameters are adhered to, but Optimal cannot be held responsible for errors that are a result of Campaign trafficking errors made by third parties.
i. "Licensed Material" means any still image or visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files, or any copies thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is available to You through the optim.al Image Service under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material as a whole.
ii. "Reproduction" and "Reproduce" mean any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material, and the creation of any derivative work from, or that incorporates, the Licensed Material.
4. Your Account and Password. In order to create an account and access the Services, You must provide Optimal with all required registration information via the Optimal interface (the "Optimal Interface"). You are solely responsible for maintaining the confidentiality of Your user name and password, and for all activities that occur under Your user name and password. You are solely responsible for all access to Your Optimal account by any person, whether authorized or not. If You become aware of any unauthorized use of Your account, user name, password or other account information, or any other breach of security involving or related to the Services, You must provide Optimal with written notice via email to firstname.lastname@example.org as soon as possible so that Optimal can suspend use of Your account and password until a new password is issued.
5. Payment. For the Optim.al Service, You agree to pay Optimal the applicable amounts for Your ad campaigns, including media, Licensed Material, Optimal, Optim.al Credit and other fees and, if applicable, Optimal Partner fees. You are required to associate a Facebook account that has a valid payment method associated with it, to Your Optim.al account. You are responsible for paying to Facebook any media costs incurred. If You utilize an Optimal-provided Facebook Ads account for placing Your Advertisements, You are responsible for paying Optimal for any media costs incurred, including any applicable fee or revenue share payable to Optimal in exchange for providing this account.account For Campaigns placed via the Optim.al Service, before Your Campaign will begin, You are required to have an approved form of payment established with Optimal to pay Optimal'ss fees for providing the Optim.al Service. If Your payment mechanism is credit card, Your credit card will be charged periodically based on the subscription plan You have chosen. Unless specified otherwise in any other written agreement between You and Optimal, the subscription plan will cover a certain types of Optimal Services. Optimal will notify You if You have exceeded Your monthly or annual designated spend, and will assess additional fees for the amount by which You exceeded Your designated spend at the same percentage of spend rate as the current plan. Such fees will be accrued daily and charged to You either daily or weekly depending on the amount. Any other fees You incur, for example, for image or creative use or copy creation, will be subject to Your consent, which consent is to be provided by You from within the Optim.al Service via the purchase and use of Optim.al Credits and/or via an email from You. Such charges will be considered paid when Optim.al Credits You have previously purchased are redeemed, or when these charges are invoiced and paid via Your designated payment method on a daily, weekly or monthly basis. Optimal reserves the right to modify its fees and to introduce new charges at any time, upon at least fourteen (14) days prior notice to You, which notice may be provided by e-mail or posted as a message within the interface of the Optim.al Service.
6. Term and Termination. This Agreement commences on the date You first click on the "Accept" button (the "Effective Date") and will continue until terminated as permitted in this Agreement.
a. Termination by You. You may terminate this Agreement at any time by emailing written notice of Your desire to terminate to email@example.com with the proviso that such termination will only become effective at the end of the then-current billing cycle, and that no refunds will be issued for the current period's billed amount.
b. Termination by Optimal. Optimal may, in our sole and absolute discretion, suspend or terminate Your account and Your ability to access and use all or any part of the Services at any time for any reason without notice, in which case You understand that You may forfeit any Optim.al Credits available in Your account and payments made for the then-current billing cycle.
c. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate, (b) the Optim.al Service, together with any (i) Optim.al Credits and (ii) information or data stored by Optimal on Your behalf will no longer be accessible to You, and (c) Sections 3, 6(c), 8(b), and 10-20, together with any payment obligation existing as of the effective date of termination, will survive.
a. License to Optimal. You hereby grant Optimal and its third party service providers (including Inventory Partners) a royalty-free, worldwide license to use, reproduce, market, display, publish, perform, distribute and transmit the Campaigns, including any content, trademarks, service marks or logos contained therein and any other materials You upload through the Optimal Interface (such uploaded content, collectively, "Your Materials"), throughout the Optimal Inventory in accordance with the terms of this Agreement. We will not modify Your Materials without Your consent nor use Your Materials for any purpose other to perform our obligations and exercise our rights under this Agreement
c. Facebook Credits.From time to time and on a case by case basis, when and if approved by both Optimal and Facebook, Promotions may include the awarding of Facebook Credits to Participants. Use of Facebook Credits is subject to Facebookâ€™s internal policies, including without limitation (i) the Facebook Credits policy available at https://developers.facebook.com/policy/credits/Â and (ii) the Facebook Credits Branding guidelines available at https://www.facebook.com/creditsbranding/, as well as any other restrictions or obligations as determined by Optimal and Facebook, which may include You entering into additional separate agreements with Optimal.
d. Compliance with Laws. You acknowledge and agree that the Optim.al Service merely facilitates the distribution of Your Campaigns and that the Service provides no safeguards to that ensure that Your Campaigns comply with any law, rule, regulation, or applicable third party policy, including those of Inventory Partners such as Facebook or LinkedIn ("Third Party Policies"). IT IS YOUR RESPONSIBILITY TO CONSIDER (I) THE LAWS, RULES, AND REGULATIONS IN THOSE JURISDICTIONS AND (II) THIRD PARTY POLICIES GOVERNING THE ADVERTISING SYSTEMS OF EACH INVENTORY PARTNER IN WHICH YOU WILL OPERATE YOUR CAMPAIGNS AND/OR SOLICIT OR ACCEPT PARTICIPANTS TO ENSURE THAT YOUR CAMPAIGNS MEET ALL APPLICABLE LEGAL REQUIREMENTS AND COMPLY WITH ALL APPLICABLE THIRD PARTY POLICIES.In the United States and its territories, You agree that Promotions shall only be offered to legal United States residents of at least 18 years of age. You also agree to comply with all statements and promises made to Participants in Your Campaigns.
8. Proprietary Rights.
a. Grant of Rights. The Optim.al Service is accessible to You via the Site. Subject to Your compliance with all the terms and conditions of this Agreement, Optimal hereby grants to You a non-exclusive, nontransferable license to access and use, by means of a web browser and unique password, the Site, the Services, the Licensed Material, and the Optimal software and related technology (collectively, the "Optim.al Platform") solely in connection with the creation, management and optimization of online graphical Campaigns, including without limitation, for: (a) creating CPA or CPC goals, (b) accessing, storing, and using Licensed Material solely (i) through the Services and Your Optimal account and (ii) in connection with Your Campaigns distributed within the Optimal Inventory, (c) creating, uploading and storing Campaigns for distribution solely within the Optimal Inventory, (d) accessing and generating customized reporting related to Your Campaigns, (e) retrieving software code intended to be placed on Your website(s) to allow for retargeting, revenue and conversion tracking, and (f) creating new Campaigns..
b. Limitations on License. You acknowledge that the license set forth above conveys no title or ownership rights to the Optim.al Platform. Optimal retains all right, title and interest in and to the Optim.al Platform, and all information displayed therein, including without limitation, all trademarks, service marks, logos and content, together with all intellectual property rights thereto. You may not, in part or in full, modify, reproduce, copy, reverse engineer, decompile, reverse assemble or otherwise attempt to discover the source code or algorithms for the Optim.al Platform or Services. You may not reverse engineer, decompile, or disassemble the optim.al Image Service in anyway, including in a manner that enables You to download Licensed Material separate from the optim.al Image Service. You agree that You will not will not modify, duplicate, distribute, display, perform, sublicense, replicate, retransmit, reproduce or create derivative works from the transfer, sale or other use of the Licensed Material, except as specifically permitted under this Agreement. You may not rent, sell, sublicense, assign, or otherwise transfer Your right to access and use the Optim.al Platform or the Services. You agree that You will not use any device, software or routine to hack or interfere with the proper working of the Services, the Optim.al Platform, or any connected networks. You further agree that You will not use any automated means, including, without limitation, agent, robots, scripts or spiders to access Your account or to monitor or copy the Services, or any component thereof. You further agree that You will not take any action that imposes an unreasonable or disproportionately large load on Optimal's infrastructure, as reasonably determined by Optimal. Optimal reserves the right to terminate Your account in such an event. You also agree that You will not aid others in doing any of the foregoing. Optimal reserves all rights not expressly granted hereunder.
9. Access to the Optim.al Service. You are solely responsible for providing and maintaining all hardware, software, electrical and other equipment required for Your access to the Optim.al Service and the Site, including, without limitation, telecommunications and internet access connections. You understand that while Optimal employs measures to ensure that the Site and Optim.al Service are accessible 24 hours a day/7 days a week, Optimal cannot guarantee the uninterrupted display or accessibility of the Optim.al Service or the Site. In the event of any inaccessibility of the Optim.al Service or Site due to reasons within Optimal's control, You acknowledge that Optimal's sole liability and obligation will be to restore access as soon as practicable. You further understand and acknowledge that: (a) the features of the Optim.al Service are dependent on the ability to extract the relevant data from external advertising systems such as those maintained by Facebook, LinkedIn and other Inventory Partners, (b) Optimal cannot ensure the availability of such data or the functionality of these Inventory Partners or their services, and (c) Optimal cannot guarantee that any Inventory Partner will make any changes submitted by Optimal in a timely fashion.
10. Representations and Warranties. You represent and warrant to Optimal that: (a) You have the power and authority to enter into this Agreement, including without limitation, the right to bind Your company to this Agreement if You are an individual entering into this Agreement on behalf of Your employer, and the right to bind Your client(s) if You are an agency entering into this Agreement on behalf of one or more of Your client(s), (b) Your entering into this Agreement will not be a breach or violation of any other contract or agreement to which You are bound, (c) You have all rights, licenses, permissions and releases necessary to grant the rights granted to Optimal in this Agreement, and (d) all information provided by You to us in connection with Your account, registration, or otherwise, including Your age and identity, is accurate.
11. Rules of Conduct.
b. We reserve the right, but disclaim any obligation or responsibility, to remove any Material from the Services or suspend, disable, or end any Campaign that in our opinion violates this Agreement (including the Rules of Conduct). We cannot and do not assure You are or will be complying with the foregoing Rules of Conduct or any other provisions of this Agreement, and, as between You and us, You hereby assume all risk of harm or injury resulting from any such lack of compliance.
12. Copyright Policy; Digital Millennium Copyright Act
Optimal respects the intellectual property rights of others. It is Optimal's policy, at its discretion and when appropriate, to terminate the accounts of users who may infringe or repeatedly infringe the copyrights of third parties. To submit a copyright infringement notification to Optimal, please submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing the below-specified Copyright Agent with the following information in writing:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
4. Information reasonably sufficient to permit US to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if You fail to comply with all of the requirements of the preceding paragraph, Your DMCA notice may not be valid. Please see 17 U.S.C. § 512 for more information regarding the DMCA and DMCA notifications.
Our Agent to Receive Notification of Claimed Copyright Infringement can be reached as follows: By Email: firstname.lastname@example.org By Mail: DMCA Designated Agent Attn: Jonberto Yao, Optimal, Inc. 100 Bush Street, Suite 780 San Francisco, CA 94104
13. Disclaimer. THE OPTIM.AL SERVICE, LICENSED MATERIALS, AND OPTIM.AL PLATFORM ARE PROVIDED ON AN "AS IS" BASIS AND OPTIMAL EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SUCH MATERIALS INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, ACCESS OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OPTIMAL MAKES NO WARRANTY AS TO THE BENEFIT YOU WILL OBTAIN OR ROI YOU WILL RECEIVE AS A RESULT OF YOUR USE OF THE OPTIM.AL SERVICE. YOU ASSUME SOLE RESPONSIBILITY FOR THE INPUTS YOU ENTER INTO THE OPTIM.AL SERVICE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR ANY ERRORS YOU MAKE IN ENTERING SUCH INPUTS. YOU ALSO ASSUME ALL RESPONSIBILITY FOR YOUR OPERATION OF THE CONTESTS, GAMES, PROMOTIONS, AND SWEEPSTAKES IN YOUR CAMPAIGNS, AS WELL AS FOR ANY PARTICIPANT ACTIVITY IN YOUR CAMPAIGNS. OPTIMAL DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR AVAILABLE WITHOUT INTERRUPTIONS. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES REMAINS WITH YOU. FOR AVOIDANCE OF DOUBT, THE DISCLAIMERS SET FORTH HEREIN DO NOT LIMIT ANY COVENANT, REPRESENTATION OR WARRANTY THAT GETTY IMAGES MAY HAVE MADE WITH RESPECT TO THE LICENSED MATERIALS.
14. Limitation of Liability. IN NO EVENT SHALL OPTIMAL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OR USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL OPTIMAL BE LIABLE TO YOU FOR AN AGGREGATE AMOUNT GREATER THAN THE CUMULATIVE FEES RECEIVED BY OPTIMALHEREUNDER FROM YOU FOR SERVICES PERFORMED BY OPTIMAL. IN NO EVENT WILL OPTIMAL BE LIABLE FOR AMOUNTS PAID IN CONNECTION WITH GRAPHICAL ADVERTISING PURCHASES DUE TO TECHNOLOGY FAILURE, HUMAN ERROR (INCLUDING WITHOUT LIMITATION TYPOS OR OTHER ERRORS SUBMITTED TO THE OPTIMAL INTERFACE), MALFUNCTION OF THE APPLICABLE INVENTORY PARTNER TECHNOLOGY, OR ANY OTHER CIRCUMSTANCE OUTSIDE OF OPTIMAL'S CONTROL.
15. Indemnification. You shall indemnify, defend and hold harmless Optimal, its subsidiaries and affiliates, and the respective partners, agents, officers, directors and employees of each of the foregoing, from and against any loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Losses"), whether incurred due to third party claims or otherwise, arising or resulting from or caused by any breach by You of any representation, warranty, or provision contained in this Agreement.
17. Security. Optimal maintains safeguards to protect the security, integrity and privacy of all Your information in Optimal's possession and control. However, no method of Internet transmission or electronic storage is 100% secure. Therefore, while Optimal strives to protect Your information, please be advised that Optimal assumes no responsibility or liability for disclosure of Your information.
18. Electronic Signatures and Agreements. You acknowledge and agree that by creating an account, or by checking the "I ACCEPT" box or such similar box or link as may be designated by Optimal to provide payment for or register for the Optim.al Service, You are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that Your electronic submissions constitute Your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICE. Further, You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
19. Publicity. You agree that we may use Your name and logo in presentations, marketing materials, customer lists, financial reports and website listings of customers. You will not use Optimal's trademarks, service marks or logos, nor make any public announcement regarding the subject matter of this Agreement, without Optimal's prior written consent.
20. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement. This Agreement will be governed and interpreted in accordance with the laws of the State of California without reference to conflicts of laws principles. Jurisdiction and venue for all disputes hereunder shall be in San Francisco, and You hereby expressly agree to such jurisdiction and venue. Optimal will not be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control. No failure of either You or Optimal to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms. All notices under this Agreement will be in writing, sent by confirmed email and will be delivered to: in Optimal's case, the email address specified in the Section of this Agreement describing the subject to which such notice relates, or if no email address is specified, then to email@example.com; and in Your case, to the email address associated with Your user name and account. Unless otherwise stated, notice will be effective on receipt. You and Optimal are independent contractors, and nothing in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the parties.